Mbuthia v Kenya Power & Lighting Company [2022] KEET 890 (KLR) | Electricity Tariffs | Esheria

Mbuthia v Kenya Power & Lighting Company [2022] KEET 890 (KLR)

Full Case Text

Mbuthia v Kenya Power & Lighting Company (Appeal E001 of 2022) [2022] KEET 890 (KLR) (Civ) (24 August 2022) (Ruling)

Neutral citation: [2022] KEET 890 (KLR)

Republic of Kenya

In the Energy & Petroleum Tribunal

Civil

Appeal E001 of 2022

D.K Mwirigi, Vice Chair, B.H Wasioya, F. M Kavita, Samuel Maina Karanja & D Jemator, Members

August 24, 2022

Between

Peter Njuguna Mbuthia

Appellant

and

Kenya Power & Lighting Company

Respondent

Ruling

BACKGROUND 1. The Appellant, Mr. Peter Njuguna Mbuthia, has since December 2014 been a tenant of one Mr. Joseph Kariuki Wanyugi, occupying a room on the second floor of a property situated in Eastleigh Section 3, Nairobi. The room is supplied with electricity by the Kenya Power and Lighting Company (KPLC) through account number 37125004939 held by Mr. Wanyugi.

2. On 16th May 2017, the Appellant wrote to the Respondent demanding a refund of KShs. 5,742 being a backlog of fixed charges which he had to pay before he could be allowed to buy electricity units (tokens) on the pre-paid meter serving the room that he occupies. The Respondent did not address the Appellant’s demand to his satisfaction, necessitating reference of the matter to the Energy and Petroleum Regulatory Authority (hereinafter referred to as the Authority).

3. The Director General of the Authority communicated their decision on the matter vide the letter dated 15th February 2022 wherein he states that:“The Authority has considered your complaint notes (sic) that the issue in dispute falls squarely within the tenancy agreement. The Authority therefore advises that based on the circumstances of this matter, you ought to address the claim for reimbursement to your landlord with whom you entered into an agreement.Consequently, you are advised to get in touch with your landlord to make necessary arrangements on settling the matter”.

Appellant’s Memorandum of Appeal 4. In the Memorandum of Appeal dated 14th March 2022, Mr. Mbuthia states that the Appellant herein being dissatisfied by the decision and order of the Director General of the Energy and Petroleum Regulatory Authority made on 15. 02. 2022 wishes to appeal against the Order for the following grounds:1. That, Energy & Petroleum Regulatory Authority erred in law and fact by:a.Usurping the role of Alternative Dispute Resolution experts.b.Failing to recognize that it lacked jurisdiction to hear and determine or entertain the dispute before exhaustion of all alternative conflict resolution mechanism.c.Improperly admitting the reference for hearing out of time by 5 years without the leave of the Tribunal.d.Circumventing pre hearing mechanism.e.Presiding over a sham mediation process.f.Sitting as an appeal over its own orders.g.Delivering the decision dated 15. 02. 2022 without a hearing.h.Denying him a right of reply.i.Rendering a skewed decision.j.Delivering its decision beyond statutory timelines.2. That, Energy and Petroleum Regulatory Authority:a.was conflicted.b.lacked neutrality.

5. The Appellant claims a total of KShs. 255,182. 00, made up as follows:a.KShs. 5,742. 00 being a refund of fixed electricity charge;b.KShs. 39,440. 00 being fixed electricity charge fee benchmarked on Kenya Power’s penalty fee of KShs. 580. 00 per month for denial of use of the money for a period of 6 years;c.KShs. 150,000. 00 being punitive damages for misfeasance in public office by Mr. Muli & Mr.Okube and KShs. 60,000. 00 being Special Damages – The cost of the fixed charge refund (Photocopy, print, research, transport etc).

6. The Appellant further prays for costs of the appeal.

Respondent’s Reply 7. The Respondent in their Reply to the Dispute dated 12th April 2022 makes, among others, the following averments:a.The Appellant’s suit is res judicata, incompetent, incongruous, misconceived, an abuse of the court process and inept in both legal, substance and form and that at an opportune moment shall crave for leave of this Honourable Court to have the same struck out.b.The Respondent does not produce electricity and it has to purchase the same and pay beforehand to electricity producers such as KenGen and other Independent Power Producers.c.The supply of electricity to its customers comes with an obligation on the customers to pay the electricity bills as and when they fall due failure to which the respondent is entitled by law to demand payment from the particular customer for the amounts owed.d.The Appellant/Claimant is ignorant of the presence of other key players in the energy sector and the policies & procedures guiding the operations of the respondent.e.The Energy & Petroleum Regulatory Authority under powers conferred in Section 11 (c) of the Energy Act 2019, approves the schedule of tariffs for supply of electricity by the Respondent herein.f.The schedule of tariffs prescribes the Tariffs, Charges, Prices and Rates to be charged by the respondent to the consumers for electrical energy consumed by them.g.The subject of this appeal is the reimbursement of paid Fixed Charge on pre-paid meters as at May 2017. The schedule of tariffs guiding the operations of the Respondent as at May 2017 (Schedule of Tarriffs-2013 dated on 22. 11. 2013), provides that Fixed charge is the amount to be charged per Post-Paid Billing Period or Pre-Paid Units Purchase Period, with respect to each Consumer category as provided by the Schedule.h.As per the schedule issued by the Commission, the Respondent duly enforced the same to all its consumers for electrical energy consumed by them. The government obtains 16% VAT from the Fixed charge paid by the consumers.i.The Appellant lacks locus standi to institute this suit and the suit as filed herein is improperly before this Honourable Court, lacks merit, is fatally defective, is an affront to mandatory legal provisions governing pleadings and does not disclose any reasonable cause of action against the Respondent.j.As per the Appellant’s documents in his record of Appeal (letter dated 16th May 2017), he explicitly states that Electricity Account No. 37125004939 is registered under the name of his Landlord Mr. Joseph Kariuki Wanyugi. The Respondent therefore only recognizes the holder of the electricity account who signed a supply contract with the respondent. Thus, the appellant/applicant, is a stranger to the Respondent.k.The letter dated 15th February 2022 from the Energy & Petroleum Regulatory Authority further advises the appellant that the dispute falls squarely within his tenancy agreement with his Landlord therefore he ought to address the claim for reimbursing to his Landlord whom he has a Tenancy Agreement with.l.It shall at the hearing hereof raise a preliminary objection to these proceedings that it has been wrongly sued and that this suit is thereof incompetent and bad in law and should be dismissed on these grounds.m.The issues as raised by the Appellant against the Respondent in the Record of Appeal has already been adjudicated and sufficient guidance issued by the Energy & Petroleum Regulatory Authority.n.From the above, it is evident that the Appellant, in bad faith is deliberately circumventing the law by failing to settle the issue by such filings in court.o.The prayers sought by the Appellant are untenable and will only amount to engaging this Honourable Court in an academic exercise.

8. The Respondent in their Notice of Motion dated 26th May 2022 urges the Tribunal to:1. dismiss the Appellant’s suit for showing no reasonable cause of action against the Respondent, there being no electricity supply contract between the Appellant/claimant and the Respondent; and2. provide for costs of the application.

9. The application was made on the grounds that:a.The Respondent avers that as per the Appellant’s/Applicant’s documents in his Record of Appeal (letter dated 16th May 2017), he explicitly states that Electricity Account No. 37125004939 is registered under the name of his Landlord Mr. Joseph Kariuki Wanyugi. The Respondent therefore only recognizes the holder of the electricity account who signed a supply contract with the Respondent. Thus, the Appellant/Applicant, is a stranger to the Respondent.b.The Respondent stands to suffer irreparable loss and damage unless this suit is dismissed.

Appellant’s Rejoinder to Respondent’s Reply 10. In his Rejoinder of 25th April 2022 reacting to the Respondent’s Reply to the Dispute dated 12th April, the Appellant:i.Refutes the Respondent’s averment that the suit is res judicata. He further states that for a period one year, the Respondent did not take any action on the Appellant’s demand for refund of the backlog of fixed charges which he paid under duress.ii.Avers that failure by the Respondent to act on his claim for refund meant that the “fixed charge fee is an illegal levy and the right to a refund crystallized.iii.States that he referred the matter to the Authority for redress. On 10th December 2018, the Authority referred the matter back to the Respondent for resolution. However, the Respondent did not resolve the problem, despite many reminders and interventions by the Authority.iv.Avers that for over two years, the Authority failed to discharge its statutory duty of making a determination on the refund claim, offending Article 10 (2) of the Constitutionof Kenya 2010 as well as Section 160 (1) (a) and (3) (a) of the Energy Act 2019. v.Is of the view that the Authority’s decision dated 15. 02. 2022 was irregular having been made suo moto, was anchored on a flawed quasi-judicial process and undermined fair play.vi.Alleges that the Respondent was indolent for a period of five years, forfeited its right to defend therefore has no locus standi and is a stranger in the appeal.vii.Prays that the Tribunal allow the appeal and enter a judgement for KShs. 255,182. 00 plus costs of the appeal.

Directions 11. The Tribunal directed the parties to canvass the issues in dispute by way of written submissions.

Appellant’s Submission 12. The Appellant filed written submissions, which he refers to as Grounds of Opposition, dated June 9, 2022 in which he submits that:The Appellant, having been served with a Notice of Preliminary objection dated 26. 05. 2022 brought under Section 1A, 1B and 3A of the Civil Procedure Act Cap 21; Order 2 Rule 15(1) of the Civil Procedure Rules 2010 hereby oppose the application on the grounds that:a.The Respondent has no locus standi.b.The Appellant has locus standi.c.The said Application is bad in law and abuse of court process.d.The application (is) misconceived, mischievous, bad in law, is frivolous and vexatious.e.The Appellant therefore prays that the application be struck out.f.Cost of Application be provided for.

Respondent’s Submission 13. The Respondent submitted that the case before the Tribunal was about the reimbursement of payments in respect of Fixed Charges on Electricity Account No. 37125004939.

14. The Respondent further submitted that the Authority in their letter dated 15th February 2022 advised the Appellant to address his claim for reimbursement to his landlord being the holder of the electricity account.

15. The Respondent filed the Notice of Motion dated 26th May 2022 (which the Tribunal notes is what is referred to in the Appellant’s Grounds of Opposition as the Notice of Preliminary Objection) which is premised under the provisions of Section 1A and 3A of the Civil Procedure Act and Order 2 Rule 15(1) of the Civil Procedure Rules, 2010.

16. The Respondent went on to submit that:a.The application is premised on the ground that the Appellant has no locus standi to institute this suit and as such the suit as framed contravenes the mandatory legal provisions governing pleadings.b.The Appellant instituted a suit against the Respondent yet he is not privy to the contract he seeks to enforce against the Respondent, as such the Appellant’s suit is hopelessly misconceived, is frivolous and as instituted, is totally devoid of merit and an abuse of the court process, hence it is in the interests of justice that the Appellant’s suit be dismissed and/or struck out.

17. The Respondent also submitted that the issues for determination and legal basis are whether:a.The Appellant has locus standi to institute the case against the Respondent.b.The Appellant has a reasonable cause of action against the Respondent.

18. As to whether the Appellant has locus standi to institute the case against the Respondent, the Respondent submitted that they relied on the case of Apex International & Anglo Leasing Finance Ltd v Kenya Anti-Corruption Commission [2012] eKLR where Emukule J (as he then was) quoted the case ofGoodwill and Trust Investment Ltd & Another v Witt and Bush Ltd (Nigerian SC 266/2005) where the import was that proper parties must be identified before an action can be found to be competent and have jurisdiction.

19. The Respondent urged the Tribunal to dismiss the Appellant’s case for being incompetent in limine, for not having locus standi to institute this case and not having the proper parties on record.

Issues for Determination 20. Whether the Appellant has locus standi to institute the case against the Respondent;

21. Whether the suit is res judicata, incompetent, incongruous, misconceived, an abuse of the court process;

22. Whether the Respondent was indolent for a period of five years and is a stranger in the appeal for failing to defend the complaint at the Authority;

23. Whether the Appeal has merit.

Analysis and Determination Whether the Appellant has locus standi to Institute the case against the Respondent 24. It is an elementary principle in law that a Court cannot adjudicate on a matter where a party does not have locus standi to institute the said matter.

25. The Respondent has submitted that the Plaintiff has no Locus Standi or capacity to institute this suit and due to the lack of the said capacity, the suit is incompetent and should be struck out.

26. In the case of Alfred Njau and Others v City Council of Nairobi ( 1982) KAR 229, the Court while defining the term locus standi stated that;-“the term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings”.

27. Further, the Court in the matter of Khelef Khalifa El-Busaidy v Commissioner of Lands & 2 others [2002] eKLR while canvassing the issue of Locus Standi stated thus:“…for an individual to have locus standi, he must have an interest either vested or contingent in the subject matter before the court, which interest must be a legal one. Such interest must be above that of other members of the public in general.”

28. It is therefore evident that locus standi is the right to appear and be heard in Court or other proceedings and literally, it means ‘a place of standing’. Therefore, if a party is found to have no locus standi, then it means he/she cannot be heard even on whether or not he has a case worth listening to. It is further evident that if this Tribunal was to find that the Applicant has no locus standi, then the Applicant cannot be heard and that point alone may dispose of the suit.

29. In order to understand who has locus to file a claim before the Authority and this tribunal, it is prudent to appreciate the nature of the dispute before us. The parties to this dispute is a tenant on one hand and on the other hand, it is the entity supplying electricity to the premises where the tenant resides.

30. A quick look at Section 2 of the Energy Act defines the term consumer as any person supplied or entitled to be supplied with electrical energy or petroleum. It also defines supply in relation to electricity, as the sale of electricity to a licensee or consumer.

31. Regarding the Respondent’s position that the Appellant does not have locus standi to institute the Case against the Respondent, it is of importance to note that many landlords open electricity accounts for their rental properties in their own names, which are then operated by tenants as consumers of electrical energy. This is so because tenants are not the owners of the premises, but they are merely occupying the premises for the duration of the tenancy.

32. Further, in a tenancy agreement, the tenant is entitled to access and/or be supplied with electricity which he then pays for on account of their monthly consumption.

33. It is not in dispute that the Respondent demanded payment of backlog of fixed charges from the Appellant before he could buy additional electricity units. If indeed the Appellant has no locus standi to institute the suit, and the Appellant having instituted a suit against the Respondent yet he is not privy to the contract of supply of electrical energy as averred by the Respondent, why then did the Respondent demand payment from the Appellant, and why did they entertain his complaint for so long, (without taking any meaningful action)?

34. The Tribunal concludes that the Appellant having enjoyed and paid for the supply of electrical energy from the Respondent, he can therefore be classified as a consumer based on the definition under Section 2 of the Act and has locus to file the Appeal before us.

Whether the suit is res judicata, Incompetent, Incongruous, Misconceived, an Abuse of the Court Process 35. The doctrine of res judicata is set out under Section 7 of the Civil Procedure Act which states that;Res judicataNo court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

36. The doctrine ousts the jurisdiction of a court or tribunal to try any suit or issue which had been finally determined by a court of competent jurisdiction in a former suit involving the same parties or parties litigating under the same title.

37. The Court in the case of A N M v P M N [2016] eKLR cited with Approval the Court’s findings in the English case of Henderson v HendERSON (1843-60) ALL E.R.378, where it was observed thus:“…where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”

38. Further, in the case of C.K. Bett Traders Limited & 2 others v Kennedy Mwangi & another [2021] eKLR, the Court held that;“In other words, res judicata will successfully be raised as a defence if the issue(s) in dispute in the previous litigation or suit were between the same parties as those in the current suit; the issues were directly or substantially in issue in the previous suit as in the current suit and they were conclusively determined by a court of competent jurisdiction.”

39. In that respect, the Court of Appeal held in The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR), that:“For the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;a.The suit or issue was directly and substantially in issue in the former suit.b.That former suit was between the same parties or parties under whom they or any of them claim.c.Those parties were litigating under the same title.d.The issue was heard and finally determined in the former suit.e.The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

40. The Court went on to state on the role of the doctrine:“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last,outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”

41. A close reading of the above provisions of the law and the pronouncements of the Courts reveals that for the bar of res judicata to be effectively raised and upheld, the party raising it must satisfy the doctrine’s five essential elements as stated in the above cited case of The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR).

42. The Energy Act under Section 36(4) provides for the Tribunal’s jurisdiction to hear and determine appeals filed against decisions of the Energy and Petroleum Regulatory Authority. The present appeal is an appeal from the decision of the Authority dated the 15th of February 2022. The Appellant is only but exercising his right of appeal under the Act. It is on this ground that this Tribunal finds that this Appeal is not Res judicata.

Whether the Respondent was Indolent for a Period of Five Years and is a Stranger in the Appeal for Failing to Defend the Complaint at the Authority. 43. The Appellant lodged the complaint of a disputed bill with the Respondent on the 16th of May 2017, who failed or neglected to resolve it, necessitating reference of the same to the Authority.

44. On the 10th of December 2018, the Authority referred the complaint back to the Respondent, instructing KPLC to address it and advise the Authority of the action(s) taken. However, the complaint remained unresolved for a long time, prompting the Appellant to write to the Authority on the 6th of January 2022 seeking to know when the matter would be concluded. Consequently, the Authority wrote to the Respondent on the 20th of January 2022, with a copy to the Appellant, requiring a status report on the matter within seven (7) days.

45. On 24th January 2022, the Appellant wrote to the Authority objecting to the regulator’s instructions to the Respondent, citing lack of appropriate responses by the Respondent to earlier directives from the Authority.

46. The Tribunal notes that in the Memorandum of Appeal before it, the Appellant listed the Kenya Power and Lighting Company as the Respondent. It is therefore contradictory for the Appellant to allege that the Respondent lost the right to defend the suit, has no locus standi, and that the Applicant has the right to prosecute the appeal ex parte, yet he has filed a suit against them.

47. The appellant invited the Respondent to these proceedings by citing them as the Respondents. He cannot approbate and reprobate at the same time.

48. We take note and are concerned with the manner in which the Respondent handled the complaint when it was referred to them by the Authority. However, the rules of natural justice demand that they must be heard.

49. Further, pursuant to Article 50 of th Constitution, every person has the right to have a fair hearing. This was emphasized in the case ofSalome Alice Akinyi v Aridempta Veronica Ooko & another [2019] eKLR, where the Court stated that;“Notably, every person is entitled as envisaged under Article 50 of the Constitution of Kenya to have a fair trial. The said Article 50 of Constitution of Kenya provides as follows:-“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”It therefore follows that every person ought not to be shut out from accessing court or having his day in court. Indeed, the right of a party to enjoy the fruits of his judgment must be weighed against the right of a party to access court to have his dispute heard and determined by a court or tribunal of competent jurisdiction.

50. In addition, the court, in Pinnacle Projects Limited v. Presbyterian Church of East Africa, Ngong Parish & another [2018] eKLR, had the following to say on Article 50 with respect to fair trial principles in civil cases:“While the wording of Article 50 of the Constitution on the right to a fair hearing prima facie seems to focus on criminal trials it’s not lost that fair trial in civil cases includes: the right of access to a court, the right to be heard by a competent independent and impartial tribunal, the right to equality of arms, the right to adduce and challenge evidence, the right to legal representation, the right to be informed of the claim in advance before the suit is filed, the right to a public hearing, and the right to be heard within a reasonable time.”

51. The court went on to say:“…it is important that in any judicial process adjudication parties involved be given opportunity to present their case and have a fair hearing before the decision against them is made by the respective judge or magistrate. It is not lost that procedural fairness is deeply ingrained in our administration of justice system…”

52. The Tribunal on this issue concludes that the Respondent was indolent in deteriming the complaint before it. However, the Respondent has an express right to be accorded a fair hearing having been listed as a party before this Tribunal and being central to the dispute at hand.

Whether the Appeal has Merit. 53. The functions of the Authority are listed under Section 10 of the Act. Section 10 (a) (i) states that;10. The functions of the Authority shall be to-a)regulate-(i)generation, importation, exportation, transmission, distribution, supply and use of electrical energy with the exception of licensing of nuclear facilities;

54. Further, Section 11 (c) and (i) of the Act provides that;11. The Authority shall have all powers necessary for the performance of its functions under this Act and in particular, the Authority shall have the power to—c.set, review and adjust electric power tariffs and tariff structures and investigate tariff charges, whether or not a specific application has been made for a tariff adjustment;(i)investigate and determine complaints or disputes between parties over any matter relating to licences and licence conditions under this Act;

55. It follows therefore, that the Authority has the power to investigate and determine complaints or disputes between parties over any matter including a complaint filed by a tenant who is properly defined as a consumer as provided under Section 2 of the Act.

56. We take note that contrary to the provisions of Section 23 (1) of the Energy Act, 2019 which requires the Authority to make its decision on any matter before it within sixty days from the date of receipt of a request by an Applicant, the Authority took more than three years to make a determination on the Appellant’s complaint.

57. The Appellant’s main claim is that he be refunded a total of Kenya Shillings Five Thousand Seven Hundred and Forty Two (KShs. 5,742) being a backlog of fixed charges which he had to pay before he could buy electricity units (tokens) on the pre-paid meter serving the room that he occupies, a claim that clearly falls under the ambit of Section 11(c) of the Act as cited above.

58. Until August 2018, electricity tariffs were structured in two parts, namely a monthly fixed charge regardless of level of consumption, energy and fuel cost charges dependent on level of usage, together with applicable taxes and levies.

59. The backlog of fixed charges that are the subject of this appeal were in accordance with the schedule of tariffs as approved by the Authority and were applicable to all electrical energy consumers, both post-paid and prepaid.

60. A post-paid consumer is one who consumes electricity on credit and pays for it after receiving a bill from the Company in accordance with the terms and condition of supply; while a pre-paid consumer is one who pays for electricity upfront, by purchasing electricity units from the Company or its agent in accordance with the terms and condition of supply.

61. A post-paid consumer receives a bill every month, which is the normal billing period. The bill comprises fixed charges, energy and fuel cost charges, together with applicable taxes and levies, and is payable within fourteen days, failure to which, supply may be disconnected.

62. For a pre-paid consumer who buys electricity units every month, fixed charges are first deducted from the payment made, then units are dispensed equivalent to the balance of the amount paid. When the units dispensed are exhausted, the pre-paid meter sends a signal to the utility circuit breaker to cut off supply to the consumer.

63. For as long as the units bought by the pre-paid consumer remain unexhausted, the consumer will continue enjoying supply, though monthly fixed charges and taxes thereon will continue to accrue. As the Appellant stated, he hardly used electricity in the room he occupied, so the units initially bought were not exhausted for several years. During this period, the monthly fixed charges accumulated to the amount that is the subject of this appeal.

64. When the Appellant’s units ran out and he required to buy some more, the system could not allow him to purchase any without first clearing the fixed charges (together with taxes thereon) that had accrued on the subject account.

65. Allowing the refund as prayed by the Appellant would give undue preference to the Appellant, contrary to Section 213 of the Energy Act, which states that:“While discharging its functions and exercising its powers under the Act, a licensing authority shall ensure that no particular person is given undue preference or subjected to any undue disadvantage”.

66. The Appellant has no reasonable cause of action against the Respondent because fixed charges that are the subject of this appeal were a legitimate component of retail electricity tariffs as approved by the Authority to be paid by all consumers over each billing period.

67. Flowing from the foregoing analysis of the law and facts, the conclusions become irresistible that:1. The Authority did not address the Appellant’s dispute with the Respondent in a fair, expeditious and efficient manner as required by the Constitution of Kenya 2010 and the Energy Act, 2019, and that the regulator’s directives to the Respondent were not complied with, yet no action was taken against the Respondent, contrary to Section 11 (f) of the Act.2. The Respondent did not address the Appellant’s complaint in accordance with the procedure set out in the Energy (Complaints and Disputes Resolution) Regulations, 2012 and the provisions of Section 4 of the Fair Administrative Action Act, 2015. 3.The backlog of fixed charges was a legitimate debt owed by the Appellant to the Respondent, notwistanding that both the Respondent and the Authority failed to explain the same to Appellant.

Disposition 68. The Appeal is partially successful only to the extent that the decision by the Authority was irregular and is set aside. The appeal for the claim of refund is dismissed for reasons as aforestated.

69. The Respondent shall bear the costs of this appeal that partially succeeded.

DATED AND DELIVERED AT NAIROBI THIS 24TH DAY OF AUGUST 2022In the Presence of:MS. DORIS KINYA MWIRIGI - VICE CHAIRPERSONENG. BUGE HATIBU WASIOYA - MEMBERENG. FIDELIS MULI KAVITA - MEMBERMR. SAMUEL MAINA KARANJA - MEMBERMS. DOROTHY JEMATOR - MEMBERSIGNED BY: DORIS KINYA MWIRIGIENERGY AND PETROLEUM TRIBUNAL