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Court of AppealDismissedCivil Appeal No. 333 of 2005

Kenya Power & Lighting Co. Limited V Joseph Kiprono Kosgey [2012] KECA 90 (KLR)

Court of Appeal of Kenya
20 September 2012
EGE. M. GithinjiKalpana RawalK. H. RawalDavid Kenani MaragaD. K. Maraga
1,369 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that ordinary electricity billing disputes between customers and Kenya Power belong in the courts, not in statutory arbitration.

What this practically means

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Executive summary

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This was KPLC's second appeal against the High Court's decision that, although the dispute over an abnormal bill of Kshs.116,310/84 could not be entertained by the courts (it being arbitrable before the Electricity Regulatory Board under section 87(1) of the Electric Power Act), both the subordinate court and the High Court had jurisdiction to grant an injunction pending the ERB's determination. The respondent, who operated a posho mill on Plot No. 40 Chuiyat Esso, had obtained an interlocutory mandatory injunction compelling reconnection of electricity. Before the Court of Appeal, KPLC argued only that the subordinate court lacked original jurisdiction under sections 87 and 119 of the Act. The court dismissed the appeal on two grounds. First, relying on its earlier decision in Eldoret White Castle Motel, it doubted that section 87(1) ousted the courts' jurisdiction, since that provision focuses on meter accuracy, whereas the present dispute concerned a recalculated bill based on alleged meter tampering and average consumption. Second, the Electric Power Act had been repealed by the Energy Act, 2006 with effect from 7th July 2007; the ERB ceased to exist and the transition provisions in section 123 of the 2006 Act do not preserve pending disputes, so the court is the only forum. The appeal was dismissed, the subordinate court was directed to determine the dispute on a priority basis, and each side was left to bear its own costs of the appeal. The judgment binds subordinate courts and the High Court on the scope of the section 87(1) ouster.

Questions the Court framed

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

  1. 1.Whether the courts had jurisdiction to entertain the dispute between the parties notwithstanding sections 87 and 119 of the Electric Power Act conferring arbitration jurisdiction on the Electricity Regulatory Board
  2. 2.Whether the High Court erred in holding that the subordinate court had original jurisdiction to entertain the respondent's application

Key legal issues

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01

Scope of the arbitration ouster in section 87(1) of the Electric Power Act

Holding

Section 87(1) applies only to disputes as to whether a meter is in proper order for correctly registering the value of supply; a recalculated bill based on alleged meter tampering and average consumption is not such a dispute, so the courts had jurisdiction.

Reasoning

The court adopted its earlier reasoning in Eldoret White Castle Motel, doubting that Parliament intended to oust the High Court's original jurisdiction over minor consumer billing complaints given the Board's limited capacity and Nairobi location. The evidence showed the complaint concerned a recalculated bill based on alleged tampering and average consumption, not meter accuracy. The statutory language focuses on the meter, so the dispute fell outside the ouster.

p. 3
02

Effect of repeal of the Electric Power Act on disputes pending before the ERB

Holding

The Energy Act, 2006 repealed the Electric Power Act and established the Energy Regulatory Commission, but the transition provisions in section 123 do not preserve pending disputes before the ERB; such disputes cannot proceed to arbitration and only the court can determine them.

Reasoning

The court noted the 2006 Act commenced on 7th July 2007 and created the Energy Regulatory Commission to handle meter-related disputes under section 59(3). Since section 123's transition provisions do not provide for pending disputes to continue, the dispute referred by the respondent by letter dated 11th June 2002 cannot be determined by arbitration, leaving the court as the only forum.

p. 2

Legal principles established

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  • Section 87(1) of the Electric Power Act, whose focus is on the accuracy of the meter, does not oust the courts' jurisdiction over electricity billing disputes that do not concern meter accuracy
  • Where the statutory arbitral body (ERB) ceased to exist upon repeal of the Electric Power Act and the transition provisions do not preserve pending disputes, the court is the only forum for such a dispute

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The dispute is to be determined by the subordinate court on a priority basis
  3. 3.No orders as to costs of the appeal

The bench

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

EG
majority
Kalpana Rawal
majority
David Kenani Maraga
majority
On appeal from
High Court of Kenya at Eldoret
H.C.C.A. No. 4 of 2003
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure Act from the High Court (second appellate jurisdiction over the subordinate court decision); no constitutional provision invoked

Relief refused

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KPLC's appeal against the finding that the subordinate court had jurisdiction

The dispute fell outside section 87(1) of the Electric Power Act, and the ERB having ceased to exist, the court is the only forum

p. 3

Costs

We make no orders as to costs of this appeal.

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.

In the result, the appeal is dismissed. The dispute to be determined by the subordinate court on priority basis. We make no orders as to costs of this appeal. Orders accordingly.
p. 3Final orders - dismissal of appeal and priority hearing
From the foregoing, we are satisfied that the dispute fell outside the ambit of section 87(1) and thus both the High Court and the subordinate court had jurisdiction to determine the dispute.
p. 3Jurisdiction over non-meter-accuracy billing disputes
since ERB ceased to exist upon the repeal of the Electric Power Act, the only forum to deal with the dispute is the court
p. 3Forum following repeal of the Electric Power Act
It is doubtful if the Board as constituted would have capacity to handle all disputes from the supply of electricity by the respondent.
p. 3Capacity of the ERB - quoted from Eldoret White Castle Motel

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Power & Lighting Co. Limited V Joseph Kiprono Kosgey [2012] KECA 90 (KLR)", Case Analysis (2012). Civil Appeal No. 333 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/90/eng@2012-09-20

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