Mogeni Tea Factory v Kenya Power & Lighting Co Limited [2018] KEHC 3570 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYAMIRA

CIVIL CASE NO. 13 OF 2015

MOGENI TEA FACTORY.........................................................PLAINTIFF

VERSUS

KENYA POWER & LIGHTING CO. LTD..........................DEFENDANT

RULING

The plaintiff filed a plaint and a Notice of Motion dated 10th December, 2015.  Interim orders were issued with regard to the Notice of Motion and in response to the plaintiff’s suit, the defendant raised a preliminary objection dated 13/12/2016 on the following ground: -

(i)  That the court lacks the requisite jurisdiction to entertain the dispute hereto by virtue of part II and more specifically Section 6 of the Energy Act Cap 314 Laws of Kenya alongside the Energy (Complaints and Dispute Resolution) Regulations, 2012 which vests jurisdiction on the Energy Commission.

The parties filed written submissions.  Those of the defendant were received on the 10th December 2015 and those of the plaintiff on the 19th July 2018.  Counsel for the defendant submitted that the dispute herein falls within the ambit of and is a preserve of the Energy Regulatory Commission and further that appeals therefrom lie with the Energy Tribunal.  Counsel submitted therefore that this court has no jurisdiction whatsoever to hear and determine the same.  To buttress his submissions Counsel relied on the following cases: -

(i)     The owners of the Motor Vessel “Lillians” vs Caltex Oil (Kenya) Ltd [1989] KLR 1.

(ii)    The Energy Act Sections 108, 6 and 63.

(iii)   The Electric Power (Complaints & Disputes Resolution) Rules 2006.  Regulation 4.

(iv)   Adero & Another vs Ulinzi Sacco Society Ltd KLR [2002).

(v)    The Owners and Master of Motor Vessel Joey vs the Owners and Masters of the Motor Tugs “Barbara” and “Steve B” Civil Appeal 286 of 2000.

On his part Counsel for the plaintiff submitted that by virtue of Articles 165 (3), 162 (2) and 165 (5) of the Constitution of Kenya, the High Court has unlimited original jurisdiction in criminal and civil matters save for those falling within the jurisdiction of the Employment and Labour Relations Court and the Environment and Land Court. Counsel submitted that the preliminary objection raised by the defendant does not hold as the issue herein is not one of those where the jurisdiction of the High Court is excluded.  He prayed that the preliminary objection dated 13th December, 2016 be dismissed with costs to the plaintiff.

The plaintiff counsel relied on the following: -

1. Articles 165 (3), 165 (5) and 162 (2) of the Constitution of Kenya.

2. Hezekiel Oira vs EACC & Another (Nairobi Civil Case No. 285 of 2013).

3. Nrb HCC No. 383 of 2013 – William Charles Fyda vs Lance P. Nadeau & Another.

4. COA Jones M. Musau & Another vs The Kenya Hospital Association & Another.

Jurisdiction is everything and without it, a court has no power to make one more step (“Lillians” case).  I must therefore at this juncture determine whether this court has jurisdiction to hear and determine this case.  Perusal of the pleadings reveals that the dispute between the parties is one of billing and metering.  Looking at the submissions by both parties the main issue between them is that of excessive billing.  I have considered the submissions carefully and I agree with the submissions made on behalf of the defendant that the issue in dispute falls under the jurisdiction of the Energy Commission.  The Energy Act establishes the commission and in Section 6 (l) provides that: -

“The commission shall have the power to investigate complaints or disputes between parties with grievances over any matter required to be regulated under this Act.”

The High Court sitting at Mombasa dealt with a similar case in Royal Reserve Management Company Ltd v Kenya Power & Lighting Company Ltd [2017]and I agree with the view of that court that the Energy (Complaints and Disputes Regulation, 2012 has laid out procedures in place for the hearing of such cases.  Also in James Mwaura Ndung’u vs Kenya Power and Lighting Co. Ltd the court clearly stated that matters relating to energy should be heard before the Energy Regulation Commission.

Article 159 (c) of the Constitution provides that alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanics shall be promoted, it is in this spirit that the Energy Act provides for avenues for dispute resolution for energy matters.  In International Centre for Policy and Conflict & 5 others v The Hon. Attorney General & 4 others eKLR [2013]a five Judge bench of this court held that:-

“Where there exists sufficient and adequate mechanisms to deal with a specific issue or dispute by other designated constitutional organs, the jurisdiction of the court should not be invoked until such mechanisms have been exhausted……..”

I find that as the mechanisms for resolving this dispute are well laid under the Energy (Complaints and Dispute Regulations) the matter should be referred to the Commission for resolution.

Accordingly I uphold the preliminary objection and order that the parties refer the dispute to the Energy Regulatory Commission for hearing and final determination. This suit and the Notice of Motion dated 10th December 2015 are hereby struck out with costs to the defendant.

It is so ordered.

Dated, signed and delivered at Nyamira this 4th day of October, 2018.

E. N. MAINA

JUDGE