Athigo v Kenya Power & Lighting Co Ltd (Petition E003 of 2025) [2026] KEHC 7766 (KLR) (28 May 2026) (Ruling)

Athigo v Kenya Power & Lighting Co Ltd (Petition E003 of 2025) [2026] KEHC 7766 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7766 (KLR) Republic of Kenya In the High Court at Kisumu Petition E003 of 2025 JM Omido, J May 28, 2026 Between Jane Atieno Athigo Petitioner and Kenya Power & Lighting CoLtd Respondent Ruling A. Background 1.The Petitioner herein Jane Atieno Athigo commenced the present proceedings vide the petition dated 30th January, 2025, seeking the following reliefs against the Respondent:a.A declaration that the failure by the Respondent to restore electricity supply to the Petitioner’s residential home in Usigu is a violation of the Petitioner’s right to dignity, freedom of expression, and right to fair administrative action.b.A declaration that the Respondent has violated the Petitioner’s right to goods and services of reasonable quality and their full benefit thereof as prescribed under Article 46 of the Constitution.c.A declaration that the violation of the Petitioner’s right to goods and services of reasonable quality and the enjoyment of their full benefit thereof has occasioned the Petitioner loss of money as a resource, for the time spent following up the issue, shame, embarrassment and anxiety.d.A declaration that the electricity bill on the postpaid meter number 061614632 account number 31627116 issued to the Petitioner is without basis and justification.e.An award of general damages of Ksh.700,000/- for inconvenience, shame, embarrassment and anxiety suffered by the Petitioner.f.Costs of the petition.g.Any other relief as the Court may deem just and expedient to grant. 2.Contemporaneous with the petition, the Petitioner filed the notice of motion dated 30th January, 2025, presented underArticles 22, 23 and 47 of the Constitution., Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules and Order 51 Rules 1 and 4 of the Civil Procedure Rules and all other enabling provision of the law, through which she sought the following orders:1.That this application be certified as urgent and service be dispensed with in the first instance.2.That pending the hearing and determination of this application, this Honourable court be pleased to issue an order compelling the Respondent to unblock and/or reactivate the Applicant’s prepaid meter account number 54606146790 immediately or within 24 hours.3.That pending the hearing and determination of this application, this Honourable court be pleased to issue an interim order of injunction prohibiting the Respondent from interfering with the said prepaid meter in whatever manner possible to render it unfunctional.4.That pending the hearing and determination of this petition, this Honourable court be pleased to order the Respondent to rectify the issue of the Applicant’s postpaid meter number 061614632 account number 31627116 and furnish this court with the true identity of the persons in use of the said meter.5.That this Honourable court be pleased to issue such further orders as may be necessary to give effect to the foregoing orders.6.That costs of this application be provided for. B. The Respondent’s Preliminary Objection. 3.It is instructive from the record that the Respondent filed a notice of preliminary objection dated 19th March, 2025 challenging the jurisdiction of this Court to entertain and determine the present petition on the basis that the same contravenes the following provisions of law:a.Sections 3(1), 10; 11(e), (f), (i), (k) & (l); 23; 24; 25; 36; 40; 42; 159(3); 160(3) and 224(2)(e) of the Energy Act, 2019.b.Regulations 2, 4, 7 and 9 of the Energy (Complaints and Disputes Resolution) Regulations, 2012.c.Article 159(2)(c) and 169(1)(d) and (2) of the Constitution..d.Sections 9(2) and (3) of the Fair Administration Act.e.Section 6 of the Civil Procedure Act. 4.When the matter was placed before me on 20th March, 2025, I directed that the preliminary objection be canvassed by way of written submissions. C. The Respondent’s Submissions on the Preliminary Objection. 5.In support of the preliminary objection, the Respondent submits that this Court lacks jurisdiction to hear and determine the petition and the accompanying application on account of the doctrine of exhaustion and the dispute resolution mechanisms established under the Energy Act, 2019. 6.It is contended that the dispute herein concerns electricity billing, disconnection and reconnection of power supply, matters which fall squarely within the mandate of the Energy and Petroleum Regulatory Authority and the Energy and Petroleum Tribunal. 7.The Respondent submits that Article 159(2)(c) of the Constitution. obligates courts to promote alternative dispute resolution mechanisms and that parties are required to exhaust statutory remedies before invoking the jurisdiction of the Court. Reliance is placed on the decisions in William Odhiambo Ramogi & 3 others v Attorney General & 4 others, Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR and Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others [2016] eKLR for the proposition that where Parliament has established specialized dispute resolution procedures, parties must first resort to those mechanisms before approaching the courts. 8.According to the Respondent, the petition merely disguises an ordinary dispute relating to electricity supply and billing as a constitutional claim so as to improperly invoke the jurisdiction of this Court. It is argued that mere citation of constitutional provisions does not elevate a dispute into a constitutional matter. In that regard, reliance is placed on the decision in Dhow House Limited v Kenya Power and Lighting Company (Constitutional Petition E058 of 2021) [2022] KEHC 11840 (KLR) (19 August 2022) (Ruling) where the Court held that disputes arising from contested electricity bills ought to be addressed through the mechanisms provided under the Energy Act. 9.The Respondent further submits that Sections 3, 9, 10, 11, 23, 24, 36, 160 and 224 of the Energy Act, together with Regulations 2, 4, 7 and 9 of the Energy (Complaints and Disputes Resolution) Regulations, 2012, confer jurisdiction upon the Energy and Petroleum Regulatory Authority to investigate and determine disputes relating to billing, disconnection, metering, reconnection, quality of supply and all matters concerning the generation, transmission, distribution and use of electrical energy. 10.It is the Respondent’s case that Regulation 4 of the said Regulations expressly provides that disputes relating to billing, damages, disconnection, metering and reconnection are to be determined by the Authority. The Respondent argues that the Petitioner’s grievances, as disclosed in the pleadings and supporting affidavit, concern disconnection of electricity supply and reconnection of a meter and therefore fall within the exclusive statutory mandate of the Authority. 11.In the alternative, the Respondent submits that the Energy and Petroleum Tribunal has original civil jurisdiction under Section 36(3) of the Energy Act, to hear disputes between a licensee and a third party. It is contended that the Respondent is a licensed electricity distributor within the meaning of the Act and that the Tribunal has power under Section 36(5) to grant equitable remedies including injunctions, damages and specific performance, which are among the reliefs sought by the Petitioner. 12.The Respondent further submits that Section 37 of the Energy Act provides a complete appellate framework by granting a right of appeal from the Tribunal to the High Court. It is therefore argued that the statutory framework establishes a comprehensive dispute resolution hierarchy which the Petitioner deliberately bypassed. 13.The Respondent also relies on Sections 9(2) and 9(3) of the Fair Administrative Action Act, which bar courts from reviewing administrative actions where internal dispute resolution mechanisms have not been exhausted. It is argued that the provisions are couched in mandatory terms and divest this Court of jurisdiction where statutory remedies remain unexhausted. 14.The Respondent submits that jurisdiction is a fundamental issue that must be determined at the earliest opportunity and that a court acting without jurisdiction must down its tools. In support of this proposition, reliance is placed on the decisions in Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR; Phoenix of EA Assurance Company Limited v SM Thiga t/a Newspaper Service [2019] eKLR and Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] KECA 250 (KLR). 15.It is further submitted that where Parliament has vested jurisdiction in specialized statutory bodies, courts ought to exercise restraint and allow those bodies to discharge their mandates. The Respondent argues that the specialized bodies established under the Energy Act possess the technical expertise necessary to resolve disputes in the energy sector expeditiously and efficiently. 16.The Respondent maintains that the petition and application amount to an abuse of the court process because the Petitioner knowingly bypassed the dispute resolution mechanisms established under statute. The Respondent therefore urges the Court to uphold the preliminary objection, strike out or dismiss the petition and application for want of jurisdiction and award costs to the Respondent. D. The Petitioner’s Submissions on the Preliminary Objection. 17.In opposition to the Respondent’s preliminary objection, the Petitioner submits that the objection is devoid of merit, amounts to an abuse of the court process and that this Court is properly seized of jurisdiction to hear and determine the petition. 18.The Petitioner submits that the objection raised does not meet the threshold of a proper preliminary objection as set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and reaffirmed by the Supreme Court in Independent Electoral & Boundaries Commission v Jane Cheperenger & Others [2015] eKLR. It is argued that a preliminary objection must raise a pure point of law on the assumption that all pleaded facts are correct and cannot be sustained where ascertainment of facts or the exercise of judicial discretion is required. 19.According to the Petitioner, the issues raised by the Respondent cannot be determined without interrogating the factual circumstances surrounding the alleged unlawful disconnection of electricity supply and the alleged violation of the Petitioner’s constitutional rights. The Petitioner therefore contends that the objection does not raise a pure point of law capable of disposing of the matter at a preliminary stage. 20.The Petitioner further submits that the petition was instituted pursuant to Articles 19, 20, 21(1), 22(1), 23, 28, 33, 46 and 47 of the Constitution. and seeks redress for alleged violations of fundamental rights and freedoms occasioned by the Respondent’s actions. It is contended that the Respondent disconnected electricity supply to the Petitioner’s prepaid meter at her residence in Usigu on account of arrears allegedly accruing from a postpaid meter unlawfully installed at another residence in Kisumu, despite several complaints and requests for intervention by the Petitioner. 21.The Petitioner submits that the Respondent’s conduct has violated her constitutional rights, including her rights as a consumer and her right to fair administrative action. It is argued that the petition raises genuine constitutional questions concerning alleged infringement of rights and freedoms under the Bill of Rights, thereby bringing the dispute within the jurisdiction of this Court. 22.Reliance is placed on Article 22 of the Constitution., which grants every person the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. 23.The Petitioner further invokes Article 165 of the Constitution., arguing that the High Court is expressly vested with jurisdiction to determine questions concerning alleged violations of constitutional rights and freedoms. 24.The Petitioner relies on the decision in Wekesa v Kenya Power and Lighting Company Ltd & another [2013] eKLR where the High Court dismissed a similar preliminary objection and held that constitutional petitions alleging infringement of rights fall within the jurisdiction of the High Court notwithstanding the existence of statutory dispute resolution mechanisms under the Energy Act. 25.The Petitioner also relies on the decision in Alan E Donovan v Kenya Power and Lighting Company [2021] eKLR in which the Court held that disputes involving both energy-related complaints and allegations of constitutional rights violations constitute hybrid disputes capable of being entertained by both the High Court and the statutory bodies established under the Energy Act. 26.It is the Petitioner’s submission that neither the Energy and Petroleum Regulatory Authority nor the Energy and Petroleum Tribunal possesses jurisdiction to determine constitutional questions relating to alleged violations of rights and freedoms under the Constitution.. The Petitioner therefore contends that this Court is the proper forum for adjudication of the dispute. 27.In conclusion, the Petitioner urges the Court to find that it has jurisdiction to hear and determine the Petition, dismiss the preliminary objection with costs and proceed to determine the matter on its merits. E. Issues for Determination. 28.From the pleadings, affidavits, preliminary objection and rival submissions on record, the following issues arise for determination:a.Whether the Respondent’s notice of preliminary objection raises a proper preliminary objection in law.b.Whether this Court has jurisdiction to hear and determine the petition and the notice of motion dated 30th January, 2025 in view of the dispute resolution mechanisms established under the Energy Act and the doctrine of exhaustion.c.Who should bear the costs of the preliminary objection, and the petition, if the preliminary objection is sustained. F. Analysis and Findings. 29.On the first issue, the law governing preliminary objections is now well settled and has been reiterated in numerous judicial decisions. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law JA stated that a preliminary objection consists of a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. The Court emphasized that such an objection should not involve contested facts or require the exercise of judicial discretion or fact-finding. The mischief the Court warned against was the improper raising of preliminary objections which tend to delay the hearing of matters and increase costs unnecessarily. 30.The Supreme Court in the case of Independent Electoral & Boundaries Commission v Jane Cheperenger & Others [2015] eKLR reaffirmed the Mukisa Biscuit principle and added further clarity by holding that a preliminary objection must arise from clear and undisputed facts and must be capable, if upheld, of disposing of the entire suit or substantially narrowing the issues. The Court stressed that where the determination of an objection requires interrogation of facts beyond the pleadings, then such objection ceases to qualify as a proper preliminary objection. 31.In the present matter, the Respondent’s objection is grounded on jurisdiction and the applicability of the doctrine of exhaustion under the Energy Act and the Fair Administrative Action Act. 32.Jurisdiction is a pure question of law and does not require the taking of evidence where the nature of the dispute is apparent on the face of the pleadings. 33.The Court of Appeal in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 underscored this position when it held that:“Jurisdiction is everything; without it, a court has no power to make one more step.” 34.In the same vein, in the case of Phoenix of EA Assurance Company Limited v SM Thiga t/a Newspaper Service [2019] eKLR, the Court of Appeal emphasized that a suit filed without jurisdiction is incompetent ab initio and cannot be salvaged through procedural craft. I am therefore satisfied that the objection raises a pure point of law and is properly before this Court. 35.The second and substantive issue is whether this Court has jurisdiction to entertain the petition and the notice of motion in light of the doctrine of exhaustion and the statutory framework governing electricity disputes. 36.The constitutional foundation of jurisdiction is found in Article 165(3)(b) of the Constitution., which vests the High Court with authority to determine questions concerning violation or threatened violation of rights and fundamental freedoms. Equally, Article 22 of the Constitution. guarantees every person the right to institute court proceedings where rights under the Bill of Rights are alleged to have been violated. 37.However, the Constitution. must be read holistically and in harmony with Article 159(2)(c), which requires courts to promote alternative forms of dispute resolution including statutory mechanisms established by legislation. Further, Article 169(1)(d) recognizes tribunals established under statutes as part of the dispute resolution architecture. 38.The effect of these provisions is that while the High Court retains constitutional jurisdiction, such jurisdiction is not exercised in disregard of valid statutory frameworks that provide specialized mechanisms for dispute resolution. 39.The Energy Act, establishes a comprehensive institutional and procedural framework for the resolution of disputes arising within the energy sector. Section 36 thereof establishes the Energy and Petroleum Tribunal and expressly confers upon it original civil jurisdiction over disputes between licensees and third parties, including consumers. 40.Importantly, the Tribunal is empowered to grant equitable remedies such as injunctions, damages and specific performance, which are the very remedies sought by the Petitioner herein. 41.In addition, the Energy (Complaints and Disputes Resolution) Regulations, 2012, particularly Regulation 4, expressly provide that disputes relating to billing, disconnection, reconnection, metering and quality of supply fall within the jurisdiction of the Energy and Petroleum Regulatory Authority. 42.The jurisprudence of the superior courts has consistently upheld the doctrine of exhaustion in matters where Parliament has created specialized dispute resolution frameworks. In Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR, the Court of Appeal held that where a dispute resolution mechanism exists outside the courts, such mechanism must first be exhausted before resorting to litigation. The Court emphasized that courts should not be the first port of call but rather the fora of last resort. 43.Similarly, in Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others [2019] eKLR, the Supreme Court held that even where courts have jurisdiction, parties must first utilize statutory mechanisms established under legislation before invoking constitutional jurisdiction. 44.The Petitioner, on the other hand, contends that the dispute raises constitutional issues relating to alleged violation of rights under Articles 22, 23, 46 and 47 of the Constitution., including alleged violation of consumer rights and fair administrative action. Reliance is placed on the case of Wekesa v Kenya Power and Lighting Company Ltd & another [2023] eKLR, where the Court declined to uphold a preliminary objection and held that constitutional petitions alleging violation of rights fall within the jurisdiction of the High Court notwithstanding the existence of statutory mechanisms. The Petitioner also relies on Alan E Donovan v Kenya Power and Lighting Company, (supra) where the Court described the dispute as “hybrid,” involving both statutory and constitutional issues. 45.It is, however, necessary to distinguish Wekesa from the present case. In Wekesa, the Court was dealing with a situation where the petitioner had already engaged the statutory dispute resolution framework and had been subjected to prolonged administrative inaction, thereby elevating the dispute into a constitutional question requiring judicial intervention. The Court was persuaded that the issues before it extended beyond mere billing or supply disputes and involved a demonstrable infringement of constitutional rights that could not be adequately addressed through the statutory framework. 46.In the present case, however, the Petitioner has approached this Court at the first instance without first invoking the dispute resolution mechanisms established under the Energy Act. Further, the core of the dispute remains the propriety of electricity billing, disconnection and reconnection of supply, all of which are expressly provided for under Regulation 4 of the Energy Regulations and fall squarely within the mandate of the statutory bodies. The factual and procedural posture of this case is therefore materially different and does not attract the ratio decidendi in Wekesa. 47.The principle of constitutional avoidance further supports this position. In Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR, the Supreme Court held that where a dispute can be resolved through a statutory framework, courts should avoid unnecessary constitutional adjudication. The Court emphasized that constitutional litigation should not be used to bypass or circumvent clear statutory procedures. 48.Applying that principle to the present case, it is evident that the dispute can competently be addressed by the Energy and Petroleum Regulatory Authority in the first instance and, if necessary, escalated to the Energy and Petroleum Tribunal. 49.Additionally, Section 9(2) and (3) of the Fair Administrative Action Act expressly provides that courts shall not review administrative actions unless internal mechanisms and other available remedies under any written law have first been exhausted. The provision is couched in mandatory terms and has been consistently interpreted to bar courts from prematurely exercising jurisdiction where alternative remedies exist. The rationale is to ensure efficiency, specialization and respect for institutional mandates created by Parliament. 50.In the circumstances of this case, I am satisfied that the dispute herein falls squarely within the statutory jurisdiction of the Energy and Petroleum Regulatory Authority and, where applicable, the Energy and Petroleum Tribunal. 51.The Petitioner has not demonstrated that she exhausted these mechanisms or that they are inadequate to address her grievances. 52.On the contrary, the statutory framework provides both investigative and adjudicative mechanisms capable of granting the reliefs sought. 53.Consequently, I find that this Court lacks jurisdiction at this stage to entertain the petition and the notice of motion. The doctrine of exhaustion, as well as the statutory scheme under the Energy Act operate to bar this Court from assuming jurisdiction in the first instance. 54.Having so found, I am guided by the Court of Appeal decision in Phoenix of EA (supra), where it was held that a suit filed without jurisdiction is “dead on arrival” and cannot be cured by amendment or procedural indulgence. The only lawful course is to strike it out. 55.On the issue of costs, Section 27 of the Civil Procedure Act provides that costs shall follow the event unless the Court for good reason orders otherwise. I find no exceptional circumstances warranting departure from this principle. The Respondent has successfully upheld its preliminary objection and is therefore entitled to costs. G. Conclusion and Disposition. 56.Accordingly, the petition dated 30th January, 2025 and the notice of motion of even date are hereby struck out for want of jurisdiction. The Petitioner shall bear the costs of the proceedings herein. 57.This file is hereby closed. DELIVERED (VIRTUALLY) DATED & SIGNED THIS 28TH DAY OF MAY, 2026.JOE M. OMIDOJUDGE.For the Petitioner: Ms. Mukoya.For the Respondent: No appearance.Court Assistant: Mr. Ngoge.