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Court of AppealAllowedCivil Appeal No. 53 of 2005

Eldoret White Castle Motel Limited v Kenya Power And Lighting Company Ltd [2010] KECA 65 (KLR)

Court of Appeal of Kenya
12 November 2010
SBS.E.O. BosireEGE.M. GithinjiPWP.N. Waki
1,473 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that customers can sue Kenya Power in the High Court over disputed electricity bills, not just through the regulator.

What this practically means

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Executive summary

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This interlocutory appeal arose from a ruling of Gacheche J. of the High Court at Eldoret delivered on 30th November 2004 in H.C.C.C. No. 122 of 2004, dismissing the appellant's application for an interlocutory injunction restraining the Kenya Power and Lighting Company from disconnecting electricity supply to its premises. The learned judge upheld a preliminary objection that, by virtue of section 87 of the Electric Power Act, No. 11 of 1997, the High Court lacked original jurisdiction, disputes between consumers and licensees being referable to the Electricity Regulatory Board. The dispute concerned a disputed bill of Kshs.3,941,388.33 following an earlier bill of Kshs.180,072.80 which the appellant had paid. The Court of Appeal, in a single unanimous judgment, held that section 87 is confined to disputes about the accuracy or correct registration of meters and does not oust the High Court's jurisdiction over billing disputes generally. It noted the practical impossibility of a Nairobi-based Board of seven members handling all electricity disputes nationwide, and observed from the pleadings and the respondent's own replying affidavit that the complaint concerned computation and lawfulness of the bill, not meter accuracy, and that the respondent had alleged tampering with the supply connection, also outside section 87. The Court set aside the order of 30th November 2004, directed that the suit and application be heard on the merits, and ordered that the costs of the appeal abide the outcome of the suit in the High Court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court had original jurisdiction to entertain the appellant's suit and application for an injunction notwithstanding section 87 of the Electric Power Act, No. 11 of 1997
  2. 2.Whether the appellant's dispute concerning the disputed electricity bill fell within the ambit of section 87 of the Electric Power Act (i.e. whether it concerned the accuracy or otherwise of the meter)

Key legal issues

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01

Whether section 87 of the Electric Power Act ousts the High Court's original jurisdiction over all electricity supply disputes

Holding

It does not. The ouster, if any, is confined to disputes about meter accuracy and correctness of registration, and it is doubtful Parliament intended to deny the High Court jurisdiction over even minor complaints on electricity bills.

Reasoning

The court read section 87 alongside section 121 which sets out the functions of the Electricity Regulatory Board, and observed that the Board, based in Nairobi with only 7 members, would lack capacity to handle all disputes from electricity supply across the country. The plain wording of section 87 focuses on the meter and its accurate registration of consumption, not on every billing dispute.

p. 2
02

Whether the appellant's dispute over the bill of Kshs.3,941,388.33 was referable to the Board under section 87

Holding

No. The plaint alleged the bill was unlawful and totally unwarranted, not that the meter was inaccurate; the bill could have been wrongly raised or wrongly computed, matters outside section 87. The respondent's claim of tampering with the connection was likewise outside section 87.

Reasoning

The court examined the pleadings and the replying affidavit of Sarah Wepukhulu, which showed the bill was based on calculations that were revised more than once, indicating a dispute over computation rather than meter accuracy. An earlier bill had been accepted and paid. A stage had not been reached where the dispute could be said to concern meter accuracy, so the referral provision was not engaged.

p. 3

Legal principles established

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  • Section 87 of the Electric Power Act, No. 11 of 1997 is confined to disputes concerning the accuracy or registration of meters and does not oust the High Court's original jurisdiction over disputes about the lawfulness of an electricity bill generally.
  • The High Court had original jurisdiction to entertain a consumer's suit disputing an abnormal electricity bill where the complaint does not concern meter accuracy.

Court orders

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  1. 1.The order of the High Court dated 30th November, 2004 upholding the preliminary objection on jurisdiction was set aside
  2. 2.The appellant's suit and the application dated 7th October, 2004 were directed to be heard on the merits in the High Court
  3. 3.The costs of the appeal shall abide the outcome of the suit in the High Court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SB
majority
EG
majority
PW
majority
On appeal from
High Court of Kenya at Eldoret
H.C.C.C. No. 122 of 2004
Jurisdiction invoked
First appellate/interlocutory appeal to the Court of Appeal under the Civil Procedure framework against an interlocutory ruling of the High Court (the judgment does not state a specific appellate jurisdictional provision)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

All in all, it is our view that the High Court had jurisdiction to entertain the appellant’s suit and the superior court was in error when it allowed the preliminary objection which was raised on behalf of the respondent.
p. 3Jurisdiction of the High Court over electricity billing disputes
The focus is on the meter. It may be argued that a complaint about the amount of a given bill is referable to the accuracy of the meter.
p. 2Scope of section 87 of the Electric Power Act
we set aside the order dated 30th November, 2004, upholding that objection and direct that the appellant’s suit and application dated 7th October, 2004, be heard on the merits.
p. 3Final orders of the Court of Appeal
The costs of this appeal shall abide the outcome of the suit in the High Court.
p. 3Costs order

Issues in the judgment

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minor

The coram gives the first judge's name as 'BOSIRE' while the signature block reads 'S.E.O. BOSIRE'; the full form is used here for consistency.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Eldoret White Castle Motel Limited v Kenya Power And Lighting Company Ltd [2010] KECA 65 (KLR)", Case Analysis (2010). Civil Appeal No. 53 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/65/eng@2010-11-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.