REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION CASE NO. 7 OF 2021

IN THE MATTER OF VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF

FUNDAMENTAL FREEDOMS PRACTISE AND PROCEDURE RULES, 2013

AND

IN THE MATTER OF CONSUMER PROTECTION ACT, 2012 THE ENERGY ACT

AND THE ENERGY MANAGEMENT REGULATIONS, 2012

AND

IN THE MATTER OF KENYA POWER AND LIGHTING COMPANY

BETWEEN

EUNICE WANJIRU KAMAU...............................................................................PETITIONER

VERSUS

KENYA POWER & LIGHTING COMPANY LIMITED...............................RESPONDENT

Coram:    Hon. Justice S. M. Githinji

Miss Kirui for the Respondent

      Ms Chepkwony for the Petitioner

R U L I N G

The Petitioner instituted this suit by way of a Petition dated 29^th June 2021 seeking the following substantive orders:

a)  A Permanent Order compelling the Respondent to reconnect power to the Petitioner’s premises.

b)  A Permanent mandatory injunction by the honourable court do issue restraining the respondent, by themselves employees and/or agents from disrupting, disconnecting and interfering with or restricting in whatever manner whatsoever with the electricity supply to account number 21873884.

c)  A Declaration that the Respondent has violated Petitioner’s guaranteed right to goods and services of reasonable quality and gaining full benefit of the said goods and services as prescribes by Article 46 of the Constitution.

d)  A Declaration that the violation of Petitioner’s right to goods and services of reasonable quality and the enjoyment of their full benefit thereof has occasioned her loss of money as a resource, time spent following up on the issues she has been raising with the Respondent.

e)  A declaration that electricity supply bill of Kshs. 455,679 on the 25^th May 2021 to the Petitioner is without basis and or justification.

f)   An order directed at the Respondent to bill the Petitioner based solely on the actual meter readings on the tariffs set and approved by law.

g)  An order directed at the Respondent to correct or delete all untrue or misleading information in the electricity bills that affect the Petitioner.

h)  A permanent injunction directed to the Respondent from billing or recovering from the Petition adjusted and estimate bills as in the statement of 26^th April 2021.

In response to the Petition, the Respondent raised a notice of Preliminary Objection dated and filed on 6^th September 2021 and 14^th September 2021 respectively. The preliminary objection is premised on the ground that this Honourable Court lacks jurisdiction to hear and determine the petition for the reason that the Petition offends the provisions of section 3(1), 10, 11 e, f, i, k and l, 23, 24, 36, 40, 42, and 224 (2) e of the Energy Act 2019 together with Regulations 2, 4, 7 and 9 of the Energy Complaints and Dispute Resolution Regulations,  2012,  as read together with Article 159 (2) c and 169 (1) d and (2) of the Constitution of Kenya, 2010 and sections 9 (2) and (3) of the Fair Administration Act, 2015.

It is this preliminary objection that is the subject of this ruling. This court directed that the preliminary objection be dispensed with by way of written submissions of which submissions I have summarized as below:

The Respondent’s Submissions

On the onset, the Respondent explained the concept of jurisdiction and the need to allow relevant statutory bodies resolve disputes at the first instance. It cited numerous cases in support, inter alia: Adero Adero & Another v Ulinzi Sacco Society Limited [2002] eKLR; Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others [2019] eKLR; United Millers Ltd v KEBS, DCI & 5 OTHERS [2021] eKLR; Joseph Njuguna Mwaura & 2 other v Republic [2013] eKLR; Owners of the Motor Vessel “Lilian S” v Caltex Oil Kenya Limited [1689] KLR1; John Musakali v Speaker County of Bungoma & 4 other [2015] eKLR.

The Respondent submitted that the jurisdiction to adjudicate the present dispute was with the Energy and Petroleum Regulatory Authority (Authority) and the Energy and Petroleum Tribunal as expressly set out in the Energy Act, 2019. The Respondent added that Article 159(2) (c) of the Constitution recognized alternative forms of dispute resolution and that Article 169 (1) (d) thereon provide for the establishment of any other local tribunal by Acts of Parliament. On this, the Respondent cited the cases of Law Society of Kenya v Centre for Human Rights and Democracy & 13 others [2013] eKLR and Joshua Sembei Mutua v Attorney General & 2 other [2019] eKLR to buttress the point above.

It is the Respondent’s submission that sections 3,9,10,11 (e), (f), (i), (k) and (l), 23, 36,40, 42, 159, 160, (3), 167 and 224 (2)(e) of the Energy Act, 2019 as read with Regulations 2,4,7 and 9 of the Energy (Complaints and Disputes Resolution Regulations, 2012 gives the Authority jurisdiction to handle disputes similar to the one herein. While Regulations 2 and 4 provide for the persons to whom the regulations apply to and the nature of disputes to be heard by the Authority, Regulations 7 and 9 set out the procedure to be followed in filing such disputes.

The Respondent submitted that the above being a clear dispute resolution mechanism, this court lacks the requisite jurisdiction to determine the dispute herein. The case of Speaker of National Assembly V Njenga Karume [1992] 1KLR 425 was cited.

The Respondent added that the Energy Act equally establishes the Energy & Petroleum Tribunal (the tribunal) clothed with original jurisdiction to determine any dispute between a licensee and a third party under section 36 thereon. The licensee in this case being the Respondent and the third party the Petitioner.

Citing the case of Night Rose Cosmetics Limited v Nairobi County Government & 2 others [2018] eKLR, the Respondent added that section 9 of the Fair Administration Act, 2015 stripped off the courts original jurisdiction to hear matters where alternative dispute resolution mechanisms have not been exhausted.

On the issue of costs, the Respondent submitted that section 27 (1) of the Civil Procedure Act, was clear that costs follow the event.

The Petitioner’s Submissions

The Petitioner identified two issues for determination: Whether there is any violation of the Petitioner’s constitutional rights for this court to invoke its unlimited original jurisdiction.

On this issue, it was the Petitioner’s submission that the Petitioner seeks declarations which cannot be granted by the tribunal but this court by virtue of Article 165 of the Constitution of Kenya, 2010.

The Petitioner submitted that her fundamental right to goods and services of reasonable quality and gaining full benefit of the said goods and services guaranteed under Article 46 of the Constitution had been violated by the Respondent hence the present Petition. The Petitioner explained that the Respondent has been abusing its dominance in supply of electricity with a negative impact on the Petitioner’s consumer rights by issuing erroneous, misleading and deceptive electricity bills contrary to the tariff regulations issued under section 45 of the Energy Act. The Respondent’s actions, so the Petitioner submitted, were contrary to national values and principles of good governance set out under Article 10 of the Constitution of Kenya.

The second issue was whether this court has jurisdiction to adjudicate over the dispute for the reason that the same falls under the constitution and tribunal at the same time.

It was the Petitioner’s submission that rule 7 of the Energy (Complaint and dispute Resolution) Regulations, 2012 does not expressly oust the jurisdiction of this court since there is no mandatory clause stipulating where such a dispute as the present one should be commenced.

The Petitioner added that the present matter is in any case a hybrid case that involves a dispute under the Energy Act and a case of human rights violation. In such a scenario, the Petitioner was of the opinion that this court’s jurisdiction could not be limited especially because the Energy Regulatory Commission was not a quasi-judicial body. Meaning that it could only provide administrative remedies. Reliance was placed on the cases of Mohammed Ali Baadi v The Attorney General and 11 others [2018] eKLR; Patrick Musimba v National Land Commission and 4 others [2016] eKLR; Republic v Independent Electoral and Boundaries Commission & others exparte The National Super Alliance Kenya [2017] eKLR.

In the ultimate, the Petitioner submitted that referring this petition to the Energy Commission would not exhaust the predominant issues related to the violation of the Petitioner’s constitutional rights.

Issues for Determination

1.  Whether the preliminary objection is properly raised.

2.  Whether this court has jurisdiction to hear and determine the Petition.

The law on preliminary objections is well settled that it must raise only pure points of law. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd 1969 E.A 696.

The preliminary objection herein touches on the jurisdiction of this court. The Respondent’s contention is that by virtue of there being an elaborate procedure to deal with disputes such as those raised in this petition under the Energy Act, this court lacks jurisdiction to entertain the Petition.

Applying the above test, the issue raised by the Respondent in its preliminary question and which is set out above, is clearly a pure point of law that must be considered by this Court at the earliest opportunity, because without it, a Court must down its tools. In The Owners of Motor Vessel “Lillian S” V Caltex Oil Kenya Limited 1989 K.L.R 1 where Nyarangi J.A (as he then was) stated as follows:

“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it.  Jurisdiction is everything.  Without it, a Court has no power to make one more step.   Where a Court has no jurisdiction, there would be no basis for continuation of proceedings pending other evidence.   A Court of law down its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”

The Petitioner alleges a contravention of several rights, the main one being a violation of her right to goods and services of reasonable quality contrary to Article 46 of the Constitution of Kenya, 2010. The Petitioner seeks restoration of power, an injunction against the Respondent, and a declaration that her rights under the said Article 46 have been violated.

The Petitioner concedes that the Energy Act indeed provides for an elaborate procedure for handling such disputes. However, that did not entirely or expressly oust the jurisdiction of this court. Her argument is that the nature of the prayers sought in her petition could only be granted by this court.

I am alive to the fact that the subject and nature of this preliminary objection has been raised numerously in different cases which have had a unanimous decision that this court lacks original jurisdiction to entertain such disputes as the present one. In Patrick Musimba –vs- National Land Commission & 4 Others (2016) eKLR the Court explained:

“157. Suffice to point out that this court sitting as a Constitutional Division of the High Court was only investigating and interrogating alleged violations of constitutional rights and freedoms and where there is procedure for redress available elsewhere that redress must be pursued within the rubric provided. This Court must exercise restraint and first give an opportunity to the relevant bodies or State organs to deal with the dispute as provided in the relevant statute. Such has been the gist of such cases like The Speaker of the National Assembly -v- Karume (2008) 1 KLR 426. In Narok County Council v Trans Mara County Council and Another, Civil Appeal No. 25 of 2000, the Court of Appeal expressed itself as follows in that regard;

“Although Section 60 of the Constitution gives the High Court unlimited jurisdiction, it cannot be understood to mean that it can be used to clothe the High Court with jurisdiction to deal with matters which a statute has directed should be done by a Minister as part of his statutory duty; it is where the Statute is silent on what is to be done in the event of a disagreement…Where the Statute provides that in case of a dispute the Minister is to give direction, the jurisdiction of the Court can be invoked only if the Minister refuses to give a direction or in purporting to do so, arrives at a decision which is grossly unfair or perverse.  In the latter, his decision can be challenged by an application to the High Court for a writ of certiorari because under the relevant Section the decision is to be made on a fair basis.  But if the Minister simply refuses to discharge his statutory duty, his refusal can also be challenged in the High Court by way of mandamus to compel the Minister to perform his statutory duty but not by way of a suit … If the Court acts without jurisdiction, the proceedings are a nullity …

158. The Court concluded as follows as regards the jurisdiction of the High Court;

“Where the law provides for procedure to be followed, the parties are bound to follow the procedure provided by the law before the parties can resort to a Court of law as the Court would have no jurisdiction to entertain the dispute.”(Emphasis)

In my view, the same reasoning must of necessity apply to an aggrieved party under the Energy Act and the regulations thereto which provide an elaborate dispute resolution mechanism as aptly submitted by the Respondent.

Besides, not all disputes should be elevated to a constitutional petition where there exists alternative remedy. I am guided by Lenaola J (as he then was) in Uhuru Muigai Kenyatta v Nairobi Star Publications Limited [2013] eKLR where he explained as follows:

“14. In NM & Others vs Smith and Others (Freedom of Expression Institute as Amicus Curiae) 200 (5) S.A. 250 (CC) the Court stated thus;

“It is important to recognise that even if a case does raise a constitutional matter, the assessment of whether the case should be heard by this Court rests instead on the additional requirements that access to this court must be in the interests of justice and not every matter will raise a constitutional issue worthy of attention.”

15.  Similarly in Minister of Home Affairs vs Bickle & Others (1985) L.R.C. Cost.755, Georges CJ held as follows;

“It is an established practice that where a matter can be disposed off without recourse to the Constitution, the Constitution should not be involved at all. The court will pronounce on the constitutionality of a statute only when it is necessary for the decision of the case to do so (Wahid Munwar Khan vs. The State AIR (1956) Hyd.22). The judge went on to add that: “Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a Court will usually decline to determine whether there has been in addition a breach of the Declaration of Rights.”

16.   I need say no more. Where there is a remedy in Civil Law, a party should pursue that remedy and I say so well aware of the decision in Haco Industries (supra) where the converse may have been expressed as the position. My mind is clear however that not every ill in society should attract a constitutional sanction and as stated in AG vs S.K. Dutambala Cr. Appeal No.37 of 1991 (Tanzanian Court of Appeal), such sanctions should be reserved for appropriate and really serious occasions.” 

Given the foregoing, I am inclined to find that this court lacks jurisdiction to entertain the Petition dated 29^th June 2021. The result is that the Notice of Preliminary Objection is merited and is hereby allowed.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 9TH DAY OF MARCH, 2022.

...........................

S.M. GITHINJI

JUDGE

IN THE PRESENCE OF; -

1. MR ODINDA HOLDING BRIEF FOR MISS KIRUI FOR THE RESPONDENT

2. MISS METTO HOLDING BRIEF FOR MS CHEPKWONY FOR THE PETITIONER