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High CourtStruck OutPetition dated 9th November 2018 (Nairobi High Court)· [2020] KEHC 2508 (KLR)

Okiya Omtatah Okoiti & another v Kenya Power & Lighting Company Limited & others (Petitioner's Petition)

High Court of Kenya
15 October 2020
JMJ. A. Makau
7,145 words in judgment
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AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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Before suing in the High Court, you must first use the specific dispute resolution mechanisms provided by the relevant laws.

What this practically means

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Executive summary

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The Petitioners filed a petition on 9th November 2018 seeking declarations that Kenya Power & Lighting Company Limited is a monopoly whose status violates Articles 10, 19, 46, 227 and 232 of the Constitution and Sections 3, 9, 50, 56 and 57 of the Competition Act; that the Energy Regulatory Commission, Competition Authority and Consumer Protection Advisory Committee failed in their statutory mandates; that government guarantees in the 2018 Budget Policy Statement are unconstitutional; mandamus against the regulators; a permanent injunction against billing consumers for guaranteed PPP payments; and quashing of Power Purchase Agreements with Independent Power Producers. The 1st Respondent applied to strike out the Petition for lack of jurisdiction, arguing the Petitioners had not exhausted statutory remedies under the Energy Act, Competition Act, Consumer Protection Act and Public Procurement and Asset Disposal Act. The 2nd and 3rd Respondents supported the application, each pointing to their statutory complaint mechanisms and tribunals. The Petitioners argued the High Court had exclusive jurisdiction under Articles 22, 23 and 258 and that statutory fora could not enforce the Bill of Rights. Makau J framed three issues: jurisdiction, sufficiency of alternative remedies, and prematurity. He held the Energy Regulatory Commission is the forum of first resort under Section 6 of the Energy Act with appeal to the Energy Tribunal; that the Competition Authority and Public Procurement Administrative Review Board likewise have statutory mechanisms; that the Petitioners filed no complaint anywhere; and that citing the Constitution does not confer jurisdiction. The Petition was struck out, parties directed to the statutory fora, and each party ordered to bear its own costs in view of the public interest.

Key legal issues

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01

Jurisdiction where statutory alternative remedies exist

Holding

The High Court lacks jurisdiction at first instance where the Energy Act, Competition Act and PPAD Act provide complaints mechanisms and tribunals that were not exhausted

Reasoning

The court found the Energy Regulatory Commission is the forum of first resort under Section 6 of the Energy Act and the Energy (Complaints and Disputes Resolution) Regulations 2012, with appeal to the Energy Tribunal under Sections 26 and 107. The Competition Authority and Public Procurement Administrative Review Board similarly have statutory complaint mechanisms. The Petitioners filed no complaint with any Respondent or tribunal, so jurisdiction was prematurely invoked.

p. 5
02

Sufficiency of alternative remedy and locus standi before the Commission

Holding

Section 6(1) of the Energy Act permits any person to approach the Commission without limitation as to locus standi; the Petitioners' claim of inadequate remedy was unsupported by evidence

Reasoning

The court rejected the Petitioners' argument that they lacked locus standi before the statutory bodies, holding that Section 6(1) allows any person to raise any matter under the Energy Act, and that appeals lie to the Energy Tribunal. The contention that pursuing multiple fora would be tedious and costly was found to be without evidential basis.

p. 7
03

Prematurity of the constitutional petition

Holding

The Petition was premature; statutory rights breaches must be redressed through the mechanisms provided by the relevant statute, not by constitutional petition

Reasoning

Applying the principle in Gedfrey Paul Okutoyi, the court held that not every breach of a statutory provision gives rise to a constitutional petition, and that the Petitioners failed to present a factual basis warranting invocation of the constitutional jurisdiction. All Respondents are statutory bodies whose statutes provide redress mechanisms.

p. 9

Legal principles established

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  • Where a statute prescribes a dispute-resolution mechanism, that mechanism must be exhausted before approaching the High Court; citing the Constitution alone does not confer jurisdiction

Court orders

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  1. 1.The 1st Respondent's Notice of Motion dated 4th March 2019 is allowed
  2. 2.The jurisdiction of this court has been prematurely invoked
  3. 3.The parties are directed to refer the dispute to the Energy Regulatory Commission and/or any other relevant Respondents' bodies for hearing and determination of their claims/disputes
  4. 4.The Petition dated 9th November 2018 is struck out
  5. 5.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1(1), 3(1), 4(2), 10, 19, 21, 22, 23, 25, 46, 47, 159(2)(c), 165(3)(d)(ii), (6) & (7), 201, 213(2), 227(1), 232, 258, 259(1); Fourth Schedule Paragraph 8(e)
  • Energy Act, No. 2 of 2006 (Cap 314)Sections 5, 6, 26, 27, 31, 107, 108
  • Competition Act, No. 12 of 2010Sections 3, 9, 23, 24(1) & (2), 31-38, 40, 50, 56, 57, 70, 70A, 71, Part VII
  • Consumer Protection ActSections 4, 5, 90, 90(f)
  • National Government Guarantees Act, No. 18 of 2011Section 4(2)(b) and (c)
  • Fair Administrative Actions Act, 2015Section 9(2)
  • Public Procurement and Asset Disposal Act, 2015Section 28
  • High Court (Organization and Administration) Act, 2015Section 5(a)
  • Environment Management and Co-ordination Act (EMCA)Section 129(1) & (2)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 19 & 24
  • Energy (Complaints and Disputes Resolution) Regulations, 2012Regulation 4
  • Companies ActSection 9 (as cited by Petitioners)

Cases cited (15)

  • Re the matter of Interim Independent Electoral Commission
    (2011) eKLR, Constitutional Application No. 2 of 2011

    Assumption of jurisdiction by courts is regulated by the Constitution, statute law and judicial precedent

  • Samuel Kamau Macharia vs. Kenya Commercial Bank & 2 Others
    (2012) eKLR

    A court's jurisdiction flows from the Constitution or legislation; it cannot arrogate excess jurisdiction

  • Republic v. Energy Regulatory Commission Ex-parte Midland Energy Limited
    [2018] eKLR

    Alleged breach of fundamental rights does not alone remove a matter from specialist Tribunal jurisdiction

  • Royal Reserve Management Company Ltd vs. Kenya Power and Lighting Company Limited
    [2017] eKLR

    ERC's specialist jurisdiction over energy disputes; suit struck out and referred to ERC

  • Mogeni Tea Factory vs. Kenya Power and Lighting Company
    [2018] eKLR

    Affirming ERC jurisdiction over disputes arising from the Energy Act

  • Speaker of National Assembly v. James Njenga Karume
    (1992) eKLR; (2008) 1 KLR 425

    Where a clear procedure for redress is prescribed, it must be strictly followed

  • International Centre for Policy and Conflict & 5 others vs. The Hon. Attorney General & 4 others
    [2013] eKLR

    Court jurisdiction should not be invoked until adequate designated mechanisms are exhausted

  • Re Francis Gitau Parsimei & others v. National Alliance Party and others
    Nairobi Petition No. 356 of 2012 (unreported)

    Where the Constitution or statute establishes a dispute resolution procedure, that procedure must be used

  • Bernard Samuel Kasinga v AG & others
    High Court Petition No. 402 of 2012 (unreported)

    Citing the Constitution is not enough to elevate a matter to a constitutional matter

  • Samson Chembe Vuko vs. Nelson Kilimo & 2 Others
    (2016) eKLR

    Support for following prescribed alternative dispute resolution procedures

  • Patrick Musimba vs. National Commission & 4 Others
    (2016) eKLR

    Where redress for constitutional violations is available elsewhere, it must be pursued within that rubric

  • Okiya Omtatah Okoiti v Kenya Power and Lighting Company & 10 others
    [2018] eKLR

    Parties must follow the statutory procedure before invoking High Court jurisdiction

  • Governor of Kericho County v Kenya Tea Development Agency & 30 others Ex-parte KTDA Management Services Limited
    [2016] eKLR

    Price-fixing allegations fall within the Competition Authority's province; the Act provides an efficacious remedy

  • Abdalla Abubakar Miraj & another v Kenya Ferry Services Ltd
    Mombasa High Court Petition No. 1 of 2015, [2015] eKLR

    Contentions of unconstitutional procurement must be enforced through mechanisms prescribed in the statute

  • Gedfrey Paul Okutoyi vs. Habil Olaka (Kenya Bankers Association) & another
    [2018] eKLR

    Statutory rights breaches are redressed through the statute's mechanism, not constitutional petition

Jurisdiction invoked
Articles 22, 23, 165(3)(d)(ii), (6) & (7) and 258 of the Constitution (invoked by Petitioners); court found jurisdiction prematurely invoked

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, "Okiya Omtatah Okoiti & another v Kenya Power & Lighting Company Limited & others (Petitioner's Petition)", Case Analysis (2020). Petition dated 9th November 2018 (Nairobi High Court). Source:

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