https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13028

Barasa v Attorney General & 3 others (Petition E266 of 2026) [2026] KEHC 13028 (KLR) (Constitutional and Human Rights) (19 August 2026) (Ruling) Neutral citation: [2026] KEHC 13028 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E266 of 2026 RE Aburili, J August 19, 2026 IN THE MATTER OF: THE SUPREMACY AND DEFENCE OF THE CONSTITUTION OF KENYA AS DEMANDED UNDER THE PROVISIONS OF ARTICLES 2(5), 2(6), 20(1) AND 20(2) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: THE CONTRAVENTION AND/OR THREATENED CONTRAVENTION OF THE PETITIONER'S FUNDAMENTAL RIGHTS AND FREEDOMS UNDER THE BILL OF RIGHTS IN CONTRAVENTION OF THE PROVISIONS OF ARTICLES 22(1), 22(3), 23, 24, 27, 28, 31, 35, 43(1), 46 AND 47 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: THE ARBITRARY, UNLAWFUL AND UNJUSTIFIED DISCONNECTION OF ELECTRICITY SUPPLY TO THE PETITIONER'S RESIDENCE WITHOUT NOTICE, EXPLANATION OR PROCEDURAL FAIRNESS IN CONTRAVENTION OF THE PROVISIONS OF ARTICLES 28 (HUMAN DIGNITY), 31 (RIGHT TO PRIVACY), 35 (ACCESS TO INFORMATION), 43(1) (ECONOMIC AND SOCIAL RIGHTS), 46 (CONSUMER RIGHTS) AND 47 (FAIR ADMINISTRATIVE ACTION) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: THE BREACH OF THE NATIONAL VALUES AND PRINCIPLES OF GOVERNANCE IN CONTRAVENTION OF THE PROVISIONS OF ARTICLE 10 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: THE STATUTORY MONOPOLY AND REGULATORY FAILURE UNDER THE ENERGY ACT. 2019 (SECTIONS 139-147 AND 160) AND THE CONSUMER PROTECTION ACT, 2012 (SECTIONS 12, 13. 54-56) AND IN THE MATTER OF: THE FAILURE TO PROMOTE COMPETITION. AND ALTERNATIVE POWER SUPPLY OPTIONS DESPITE CABINET-APPROVED NATIONAL ENERGY POLICY 2025-2034 AND THE LIFTING OF THE PPA MORATORIUM IN LATE 2025 AND IN THE MATTER OF: SECTIONS 7 AND 8 OF THE JUDICATURE ACT (CAP 8), ORDER 53 OF THE CIVIL PROCEDURE RULES AND THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013 Between Professor Remmy Shiundu Barasa Petitioner and The Attorney General 1st Respondent Energy & Petroleum Regulatory Authority (epra) 2nd Respondent Competition Authority Of Kenya 3rd Respondent Kenya Power And Lighting Company 4th Respondent Ruling Introduction 1.The Petitioner herein Professor Remmy Shiundu Barasa describes himself as an adult Kenyan citizen of sound mind, a Professor, ID No. 11659xxx, residing at Kaimosi Complex (premises owned by Quakers Friends Church), Vihiga County and a long-standing compliant consumer of electricity supplied under Account No. 109xxxxxx06. 2.The 1st Respondent Attorney General is the principal legal advisor to the Government of Kenya under Article 156 of the Constitution and is impleaded as the representative of the State. 3.The 2nd Respondent is the statutory regulator established under the Energy Act, 2019, with the mandate to license, regulate and oversee all electricity service providers and to ensure compliance with consumer rights and fair administrative action. 4.The 3rd Respondent is the statutory body established under the Competition Act, 2010, with the mandate to promote and safeguard competition in the national economy, including the electricity sector and to prevent abuse of dominant position by monopolies. Service of this Petition upon the Respondents shall be conducted by the Advocates of the Petitioner. 5.The 4th Respondent is the sole distributor and retailer of electricity in Kenya, exercising statutory monopoly powers and directly responsible for the impugned disconnection. 6.The Petition is dated 27th April 2026 and seeks the following reliefs: -1.A declaration that the Respondents’ failure to prevent, remedy or regulate the arbitrary disconnection of electricity supply on or about 27 February 2026 (which remains disconnected to date) violates the Petitioner’s rights under Articles 27, 28, 31, 35, 43, 46, and 47 of the Constitution.2.A declaration that the Respondents have breached their statutory and constitutional duties by failing to implement the Cabinet-approved National Energy Policy 2025-2034 and the lifting of the Power Purchase Agreements moratorium, thereby perpetuating Kenya Power’s monopoly and denying consumers access to alternative power supply options and competition.3.A mandatory order directing the 2nd and 3rd Respondents to forthwith facilitate and approve alternative power supply options for the Petitioner. Including but not limited to licensing of independent suppliers, net-metering, mini-grids, captive generation or direct supply from IPPs, so as to end the monopoly and promote competition.4.An order directing the Respondents to take all necessary steps to enable proper competition in the electricity market, including open access to the grid and issuance of licenses to alternative providers.5.An order of mandamus compelling the 4th Respondents to ensure immediate restoration of electricity supply or, in the alternative, the 1st, 2nd, 3rd Respondent be ordered to immediately approval of alternative power supply within reasonable time, not exceeding 1 months this Court’s order.6.General, special, aggravated, and exemplary damages to be assessed, including spoilage of perishables, alternative lighting/transport costs, loss of productive academic hours, professional/reputational harm, and emotional distress.7.A mandatory order directing the Respondents to issue a formal written apology retracting any insinuation of arrears8.Costs of this Petition on an advocate-client basis, plus interest at court rates.9.Such other relief as this Honourable Court deems just and expedient, including any interim or structural orders necessary to promote alternative power supply and competition in the electricity sector. 7.Concurrently with the Petition, the Petitioner filed a Notice of Motion Application dated 27th April 2026 seeking inter alia, orders compelling the 1st and 2nd Respondents and their agents including the 4th Respondent KPLC herein to restore forthwith electricity supply to his residence at Kaimosi complex, Vihiga County under Account No. 109xxxxxx06 pending hearing and determination of the Application and Petition. He seeks: -1.Spent2.Pending the inter-parties hearing and determination of this Application, an Order be issued compelling the 1st and 2nd Respondents, their servants, agents, assigns and/or licensees (including Kenya Power Limited) to restore electricity supply to the Petitioner’s residence at Kaimosi Complex Vihiga County under Account No. 109xxxxxx06 within 24 hours of this Order.3.Pending the inter-parties hearing and determination of this Petition, an Order be issued compelling the 1st and 2nd Respondents, their servants, agents, assigns and/or licensees (including Kenya Power Limited) to restore electricity supply to the Petitioner’s residence at Kaimosi Complex Vihiga County under Account No. 109xxxxxx06 within 24 hours of this Order.4.Pending the inter-parties hearing and determination of this Application, an Order do issue restraining the 1st and 2nd Respondents, their servants, agents, assigns and/or licensees (including Kenya Power Limited) from interfering with the supply of electricity supply to the Petitioner.5.That costs of this Application be provided for.6.That this Honourable Court be pleased to grant such further or other orders as it may deem fit and just to meet the ends of justice. 8.The Petition and the Application are both supported by the Petitioner’s sworn Supporting and Verifying Affidavits on even date and premised on the facts and grounds set out on the face of the Petition and the Affidavits. The Petitioner swears that as of 26th February 2026, his account No. 109xxxxxx06 had an overpayment/credit balance of Kshs 1,903, but on or about 27th February 2026, the 4th Respondent herein, KPLC disconnected electricity to the Petitioner’s residence without prior notice, explanation, or justification. 9.It is averred that KPLC officers verbally acknowledged the credit balance on 4th March 2026 but failed to provide a written explanation or restore power, even after a formal demand letter was served on 12th March 2026. 10.The Petitioner deposed that the disconnection disrupted his essential academic duties such as research, student supervision, lecture preparations and meeting deadlines; caused food spoilage; caused him to incur alternative costs; damaged his professional reputation and caused him emotional distress. 11.The Petitioner alleges breaches of Articles 10 on national values, 24 on limitation of Rights, 27 on Non-Discrimination, 28 on Human Dignity, 31 on Right to Privacy, 35 on Access to Information, 43(1) on Economic and Social Rights, 46 on Consumer Rights and 47 on Fair Administrative Action. The Petitioner asserts that EPRA and the Competition Authority the 2nd and 3rd Respondents respectively, failed to end KPLC’s monopoly and implement open market competition, despite the Cabinet-approved National Energy Policy 2025–2034 and the lifting of the Power Purchase Agreements moratorium in late 2025. 12.It is deposed by the Petitioner that the Respondents’ conduct constitutes a clear, ongoing violation of his fundamental rights under Articles 27, 28, 31, 35, 43(1), 46, and 47 of the Constitution, as well as statutory safeguards under Section 160 of the Energy Act, 2019. The Petitioner avers that he has exhausted all internal remedies and will suffer irreparable harm, uncompensable (sic) by damages if interim orders are not granted immediately. 13.He further highlights that the balance of convenience heavily favours granting the orders, as the Respondents will suffer no prejudice from the immediate restoration, while the Petitioner loses irreplaceable academic opportunities and dignity every day the disconnection continues. Responses 14.In response to the Petition and the Application, the 2nd Respondent, Energy and Petroleum Regulatory Authority (EPRA) filed a Replying Affidavit sworn by Davies Adul, a Senior Surveillance and Enforcement Officer at the Energy and Petroleum Regulatory Authority dated 7th May 2026, who deposes that the Application filed against EPRA and other Respondents is based on untrue facts, misguided legal premises and a clear misunderstanding of law and statutory mandates. 15.EPRA outlines its statutory mandate under Section 9 of the Energy Act, Cap 314, which entails regulating the economic and technical aspects of electric power, licensing the operations of the 4th Respondent, Kenya Power and Lighting Company and determining complaints and disputes concerning licences and licence conditions. 16.The deponent emphasizes that it functions as a regulatory body rather than a direct supplier of electricity, making it legally incapable of executing the orders sought by the applicant for the restoration of electricity supply. 17.EPRA further contends that the High Court lacks jurisdiction to adjudicate the suit because the applicant failed to exhaust available statutory dispute resolution mechanisms provided under the Energy Act and its subsidiary regulations. Specifically, EPRA highlights Sections 11, 23, 25, 36, 37 and 160 of the Energy Act alongside the Energy (Complaints and Disputes Resolution) Regulations, 2012, which establish procedures for handling disputes, appeals to the Energy and Petroleum Tribunal and subsequent appeals to the High Court. 18.Additionally, EPRA cites the Energy (Electricity Market, Bulk Supply and Open Access) Regulations, 2024, to refute allegations regarding the perpetuation of monopolies. EPRA maintains that the suit improperly attempts to subvert statutory mechanisms by framing the matter as a constitutional violation and therefore requests the court to dismiss or strike out the application with costs as fatally defective and devoid of merit since no valid grounds have been provided by the Applicants to warrant the prayers sought in the Application. 19.The 3rd Respondent, Competition Authority of Kenya filed a Replying Affidavit dated 10th August 2026 sworn by Boniface Kamiti, the Manager of the Consumer Protection Department at the Competition Authority of Kenya in opposition to the Petitioner’s Notice of Motion Application and Petition. 20.The deponent asserts that the Application is misconceived, fatally defective and fails to establish any legal or factual basis against Competition Authority of Kenya. He clarifies that the impugned electricity disconnection is entirely attributed to the 4th Respondent, Kenya Power and Lighting Company, a licensed distributor under the Energy Act, 2019, asserting that Competition Authority of Kenya neither supplies electricity nor regulates distribution licenses, as its statutory mandate under the Competition Act (Cap. 504) is strictly confined to promoting competition and consumer welfare. 21.Consequently, it is contended that joining Competition Authority of Kenya to the suit constitutes misjoinder and an abuse of the court process. Furthermore, Competition Authority of Kenya highlights that the Competition Act establishes a clear, sequential statutory dispute resolution process under Sections 9(1)(b), 40, and 74. That under this statutory framework, an aggrieved party must first lodge a complaint with Competition Authority of Kenya, undergo investigation and appeal any adverse determination to the Competition Tribunal before escalating the matter to the High Court. 22.It is deposed that the Petitioner failed to lodge any complaint or grievance with Competition Authority of Kenya regarding the disconnection or market dominance before filing this suit. That bypassing these statutory avenues directly subverts Section 9(2) of the Fair Administrative Action Act, 2015. 23.The deponent further notes on behalf of Competition Authority of Kenya that KPLC operates as a statutory distribution body under the Energy Act, 2019. Because no cause of action has been demonstrated and statutory remedies were not exhausted, Competition Authority of Kenya maintains that the prayers sought cannot be granted against it and prays for the dismissal of the Petition against it with costs. 24.The 4th Respondent Kenya Power and Lighting Company filed Grounds of Opposition dated 7th May 2026 in response to the Application and Petition on ground that the Court lacks territorial and geographical jurisdiction under Section 15 of the Civil Procedure Act and Article 165 of the Constitution. Additionally, that the subject-matter jurisdiction is lacking because the dispute falls exclusively under the statutory mandate of the Energy and Petroleum Regulatory Authority (EPRA) or the Energy and Petroleum Tribunal pursuant to the Energy Act, 2019. 25.Another ground is that the Petition and application are fatally defective, incompetent and unprocedural for failing to comply with statutory dispute resolution processes, specifically the Energy (Complaints and Disputes Resolution) Regulations, 2012. As a result, there is no competent suit properly placed before the Court. 26.Thirdly, it is asserted that the application violates established legal principles for granting injunctive relief under Order 40 of the Civil Procedure Rules, 2010, as the Applicant has failed to establish a prima facie case or present any factual or legal evidence. 27.It is also their ground that the applicant has suppressed material facts, misled the Court regarding the claim against the 4th Respondent and filed a frivolous, vexatious and misconceived application that constitutes a clear abuse of the court process, warranting dismissal with costs. 28.Alongside their Grounds of Opposition, the 4th Respondent also filed a Notice of Preliminary Objection dated 7th May 2026 raising two grounds as follows: -1.That this Honourable Court lacks territorial/geographical jurisdiction pursuant to section 15 of the Civil Procedure Act and 165 of the Constitution of Kenya 2010.2.This Honourable Court lacks jurisdiction to hear and determine this dispute and application together with all consequential orders should be dismissed with costs as the same offends the provisions of sections 3, 10; 11(e), (f), (i), (k) & (l); 23; 24; 36; 40; 42; 159(3); 160(3) and 224(2)(e) of the Energy Act, 2019 together with Regulations 2, 4, 7 and 9 of the Energy (Complaints and Disputes Resolution) Regulations, 2012 as read together with Article 159(2)(c) and 169(1)(d) and (2) of the Constitution of Kenya, 2010 and sections 9(2) and (3) Fair Administrative Action Act, 2015. Submissions 29.The parties canvassed the Notice of Preliminary Objection and the Application by way of written submissions which are all now on record. 30.The Petitioner’s submissions are dated 22nd May 2026. Counsel isolated the following issues for determination: Whether this Court has the territorial jurisdiction to hear and determine this suit? And Whether the Court has the jurisdiction to grant the prayers sought in the Notice of Motion and Petition dated 27th April 2026. 31.It was submitted on the first issue of territorial jurisdiction, that under Sections 12 and 15 of the Civil Procedure Act (Cap 21), a suit must be instituted where the subject matter is situated or where the cause of action arises. Citing Allan Fwamba Malilo v Tai Construction Company Limited [2016] KECA 483 (KLR), the 2nd Respondent emphasizes that territorial jurisdiction is not a mere procedural technicality that can be overlooked, nor can a suit filed without jurisdiction be transferred. Because the Petitioner resides in Vihiga County, the 4th Respondent operates offices there and EPRA maintains a regional office in Kisumu serving Vihiga, the 2nd Respondent contends that the suit ought to have been filed in the High Court at Vihiga rather than Kakamega. 32.On the second issue of subject-matter jurisdiction, the 2nd Respondent invokes the definition of jurisdiction from Black’s Law Dictionary 9th Edition and Halsbury’s Laws of England 4th Edition, Vol. 9 as well as the principle established by the Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank & Others [2012] eKLR that court jurisdiction flows strictly from the Constitution or legislation. 33.The 2nd Respondent submits that electricity disputes are governed by the Energy Act, Cap 314, which establishes EPRA under Section 9 to regulate electrical energy under Section 10(a)(i) and investigate complaints under Section 11(i). Sections 23, 24, 25, 36, 37, and 160 of the Energy Act, along with the Energy (Complaints and Disputes Resolution) Regulations 2012, create a specialized three-tiered dispute resolution framework. That under Section 36, original civil jurisdiction and statutory powers to grant equitable remedies such as injunctions and damages belong to the Energy and Petroleum Tribunal, with appeals going to the High Court under Section 37. 34.Relying on the locus classicus decision in Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited [1989] KLR 1, the 2nd Respondent submits that a court without jurisdiction must "down tools" immediately. That this position is supported by Court of Appeal and High Court precedents, including Nicholus v Attorney General & 14 Others [2023] KECA 34 (KLR) and Bernard Nyakundi Osugo v Kenya Power Limited [2021] KEHC 8115, which reaffirm that disputes regarding billing, disconnection, or power infrastructure must first exhaust EPRA and Tribunal administrative mechanisms before escalating to the High Court. 35.Finally, the 2nd Respondent asserts that the Petitioner cannot subvert the doctrine of exhaustion of remedies by framing statutory energy grievances as constitutional violations. Citing Jaldesa Tuke Dabelo v Independent Electoral & Boundaries Commission & Another [2015] eKLR, Eaton Towers Kenya Limited v Kasing'a & 5 Others [2022] KECA 645 (KLR), Kibos Distillers Limited & 4 Others v Benson Ambuti Adega & 3 Others [2020] eKLR, and Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, Counsel submits that litigants cannot avoid specialized tribunals through artful or multifaceted pleading, and that Article 159(2)(c) of the Constitution mandates the exhaustion of alternative dispute resolution mechanisms as a court of last resort. Consequently, the High Court lacks jurisdiction, and the suit should be dismissed with costs. 36.The 4th Respondent Kenya Power and Lighting Company PLC filed its submissions dated 25th May 2026 in support of its Notice of Preliminary Objection dated 7th May 2026, addressing three main issues for determination: whether the High Court has territorial jurisdiction over the petition, whether the petition is sub judice and an abuse of court process, and whether the High Court lacks subject-matter jurisdiction to hear and determine the matter owing to statutory alternative dispute resolution mechanisms. 37.On the first issue of territorial jurisdiction, Counsel for the 4th Respondent contends that under Section 15 of the Civil Procedure Act (Cap 21), a suit must be instituted where the defendant resides, carries on business, or where the cause of action arises. The 4th Respondent notes that the Petitioner resides in Vihiga County, the alleged disconnection occurred at his residence in Kaimosi, Vihiga County and KPLC maintains a depot and branch offices in Mbale, Vihiga County. Relying on Allan Fwamba Malilo v Tai Construction Company Limited [2016] eKLR, Evelyn Sani Mvuko v James Nyariki Makini [2018] eKLR, National Social Security Fund Board of Trustees v Donald O K Owuor t/a Donald Owuor & Company Advocates [2022] eKLR, and Biyogo & Company Advocates v Peter Ndungu Mburu & 2 Others [2023] eKLR, the 4th Respondent submits that filing the suit in Nairobi or Kakamega when the cause of action arose in Vihiga violates statutory rules of territorial jurisdiction, rendering the suit incompetent. 38.On the second issue of whether the suit is sub judice and an abuse of court process, the 4th Respondent relies on Section 6 of the Civil Procedure Act (Cap 21) and Section 9 of the Magistrates' Courts Act, 2015 and highlights that the Petitioner previously instituted Professor Remmy Shiundu Barasa v Kenya Power & Lighting Co. Ltd, Kakamega CMCC No. E089 of 2026, based on the exact same facts, causes of action and prayers regarding Account No. 109xxxxxx06. 39.He relie don Kenya National Commission on Human Rights v Attorney General & 2 Others [2020] eKLR, In re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR, Telkom Kenya Limited v John Ochanda t/a Ochanda & Company Advocates [2014] eKLR, and Commercial Bank of Africa Limited v Isaac Kamau Ndirangu [2014] eKLR, asserting that litigating identical issues simultaneously across different forums causes unnecessary proliferation of suits, embarrasses the court and constitutes a clear abuse of judicial process. 40.On the third issue of subject-matter jurisdiction and non-exhaustion of remedies, the 4th Respondent relies on Article 165(3) of the Constitution and the landmark authority Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited [1989] KLR 1, which establishes that jurisdiction is everything and without it, a court must immediately down tools. The 4th Respondent argues that the dispute concerns electricity supply and billing under the Energy Act, 2019, specifically Sections 3, 9, 10, 11, 12, 23, 24, 25, 36, and 160, alongside the Energy (Complaints and Disputes Resolution) Regulations, 2012. That these provisions create a specialized regulatory pathway requiring complaints to be submitted first to the Energy and Petroleum Regulatory Authority (EPRA) and then appealed to the Energy and Petroleum Tribunal. Citing Speaker of the National Assembly v Karume [1992] eKLR, Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, Multichoice Kenya Ltd v Maina [2013] eKLR, Re the Matter of the Interim Independent Electoral Commission [2011] eKLR, Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 Others [2015] eKLR, Jaldesa Tuke Dabelo v Independent Electoral & Boundaries Commission & Another [2015] eKLR, Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, and Eaton Towers Kenya Limited v Kasing’a & 5 Others [2022] KECA 645 (KLR), the 4th Respondent emphasizes that where a statute establishes a complete dispute resolution mechanism, litigants cannot bypass it or convert statutory grievances into constitutional petitions through creative pleading. 41.Finally, the 4th Respondent cited specific High Court and the Court of Appeal decisions upholding the necessity of exhausting EPRA and Tribunal mechanisms before approaching the High Court in electricity billing and disconnection disputes, including Benard Nyakundi Osugo v Kenya Power Limited [2021] KEHC 8115 (KLR), Nicholus v Attorney General & 14 Others [2023] KECA 34 (KLR), and Kenya Power and Lighting Company PLC v Joseph Kanyi King’ori, Busia High Court Civil Appeal No. E064 of 2022. Consequently, the 4th Respondent submits that the High Court lacks jurisdiction, and the Petition together with the Application should be struck out with costs. Analysis and Determination 42.Having considered the Petition and the responses thereto by way of notice of preliminary objection dated 7th May 2026 as well as the submissions canvassing the preliminary objection, the only issue for determination is whether the Preliminary Objection is merited. Under this issue, I will discuss whether this Court has territorial jurisdiction to entertain the Petitioner’s Application and the Petition and if so, whether the petition and application for conservatory orders are prematurely filed, thereby offending the twin doctrines of exhaustion and constitutional avoidance as contended by the 4th respondent. 43.Jurisdiction is a paramount and is such a substantial issue that once raised by any party or by a court on its own motion, must be determined in limine before a court sets out to determine the merits and demerits of a case. It is also trite that without jurisdiction, a court of law cannot act and must down its tools as was held in the locus classicus Owners of the Motor Vessel “Lillian S” v. Caltex Oil (Kenya) Ltd [1989] KLR 1 and reiterated by the Court of Appeal in Benson Makori Makworo v Nairobi Metropolitan Services & 2 others (2022) eKLR, the as follows:“I will, however, briefly reiterate what the Court of Appeal stated in Nakuru Civil Appeal No. 119 of 2017 Public Service Commission & 2 Others vs. Eric Cheruiyot & 16 Others consolidated with Civil Appeal No. 139 of 2017 County Government of Embu & Another vs. Eric Cheruiyot & 15 Others (unreported) in a decision rendered on 8th February, 2022 on the doctrine of jurisdiction in general as follows: -36.Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given…” 44.The apex court on its part has held as follows concerning the significance of jurisdiction, in the Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling) case.“68.A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” 45.With the above understanding of what jurisdiction is, I now proceed to determine each of the two limbs. 46.The Notice of preliminary Objection challenges this Court’s jurisdiction on two fronts. First, the territorial jurisdiction and second, the subject-matter jurisdiction for allegedly violating the twin doctrines of exhaustion and constitutional avoidance. In considering the first restriction, I have considered the provisions of Rule 8 (1) of the Mutunga Rules which provides:8.(1)Every case shall be instituted in the High Court within whose jurisdiction the alleged violation took place.(2)Despite sub-Rule (1), the High Court may order that a petition be transferred to another court of competent jurisdiction either on its own motion or on the application of a party. 47.The above provision is self-explanatory that constitutional petitions shall be lodged in the High Court within whose jurisdiction the alleged violation occurred. Secondly, where the petition is filed in a different Court from where the violation is alleged to have occurred, this Court has jurisdiction to transfer the petition to the Court with territorial jurisdiction. 48.Additionally, Section 15 of the Civil Procedure Act provides that: -15.Other suits to be instituted where defendant resides or cause of action arises-Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction—a.the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; orb.any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; orc.the cause of action, wholly or in part, arises. 49.On the other hand, section 12 of the High Court Organization and Administration Act provides for distribution of stations of the Court as follows:(1)The Chief Justice shall, in consultation with the Principal Judge, facilitate reasonable and equitable access of the services of the Court and establish at least one station of the Court in every county.(2)A station of the Court shall consist of—(a)a Presiding Judge, appointed by the Chief Justice from amongst the judges of the Court, who shall be head of the station;(b)such number of judges as the Chief Justice may, in consultation with the Principal Judge, determine;(c)a Deputy Registrar who shall be responsible to the Presiding Judge in the discharge of the functions of the office; and(d)officers appointed under section 24.(3)The filing of appeals, bail applications, and references from the subordinate courts, tribunals and other bodies or authorities within the regions designated by the Chief Justice under the Rules, shall be made at the High Court station with the corresponding supervisory jurisdiction. 50.The Act contemplates the establishment of High Court Stations in at least every County in Kenya and it is expected that disputes arising between parties in the respective counties will be filed before the High Court Stations situate in those Counties for resolution. 51.The question of territorial jurisdiction of the High Court was comprehensively discussed by the Supreme Court in the recent decision in Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others (Petition E030 & E033 of 2025 (Consolidated)) [2026] KESC 50 (KLR) (Civ) (3 July 2026) (Judgment). The Court of Appeal had rejected the contention by the Respondents that the High Court at Nakuru had no territorial jurisdiction to entertain the petition and that the petitioner was guilty of forum shopping. The Court of Appeal upheld the decision of the High Court on territorial jurisdiction and affirmed that constitutional petitions against state corporations could be instituted in any High Court station within Kenya. On appeal to the Supreme Court, the Supreme Court upheld the decision of the Court of Appeal on the territorial jurisdiction of the High Court at Nakuru to hear and determine the petition. The Supreme Court stated as follows at paragraph 78:“78.Regarding the territorial jurisdiction of the High Court at Nakuru, and the exercise of its discretionary authority to grant conservatory orders, we do not think, given the constitutional place of the High Court, that these questions should detain us longer than they ought to. The first argument is premised on the provisions of both the Civil Procedure Act and the Mutunga Rules. Section 15 of the former and Rule 8 of the latter require that suits be filed in as much as possible where the cause of action arose, among other considerations. Although the Rules have been made pursuant to Article 22(3) of the Constitution, it is our view that the question of territorial jurisdiction does not constitute a matter relating to the interpretation or application of the Constitution, and hence falls outside the purview of this Court’s jurisdiction under Article 163(4)(a). Similarly, this Court cannot, given its circumscribed jurisdiction, be drawn into deciding questions around the exercise of discretionary powers by the High Court in granting interim conservatory orders. Conservatory orders are not ordinary civil law remedies but are remedies provided for under the Constitution. Just as we reiterated in Bia Tosha Distributors Limited Vs Kenya Breweries Limited & 6 others [2023] KESC 14 (KLR), in the course of issuing the ruling, the appellants should have demonstrated, as they have failed to, that the learned judge made certain pronouncements touching on the interpretation and application of the Constitution, in the interim conservatory orders as to find their way to this court by way of appeal, as of right, within our confined jurisdiction.” 52.The Court of Appeal on its part had stated as follows on the territorial jurisdiction of the High Court in the same case on appeal from the High Court in Moi Teaching and Referral Hospital & 3 others v Gikenyi B & 152 others (Civil Appeal E107 & E116 of 2024 (Consolidated)) [2025] KECA 937 (KLR) (23 May 2025) (Judgment):“63.We will next address the argument faulting the trial judge for entertaining the petition despite lacking territorial jurisdiction to hear and determine the case. The appellants’ argument is that the petition should have been filed where the respective State agencies sued are headquartered. Territorial jurisdiction is the power of a court to hear and determine a case based on the geographical location of the events or individuals involved in the suit. It refers to the court's competence to exercise its authority within a specific geographical area. However, an objection to territorial jurisdiction and pecuniary jurisdiction is different from an objection to jurisdiction over the subject-matter. An objection for want of territorial jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit. (See the Supreme Court of India decision Kiran Singh [Kiran Singh vs. Chaman Paswan, AIR 1954 SC 340). Therefore, when objections to territorial jurisdiction are raised, courts must carefully weigh the potential impact on the constitutionally guaranteed right to access justice. Courts recognize the importance of providing a platform for individuals to seek legal redress, and this consideration weighs heavily in decisions about whether to dismiss cases based solely on territorial jurisdiction arguments, a ground that should not be confused with the competence of the court. Consequently, the court must carefully consider the peculiar facts of the case bearing in mind that Rule 8 of the Mutunga Rules cannot override the provisions of Articles 48 and 50 of the Constitution. Determining this issue, the learned Judge stated:“This court observes that the 1st, 14th, 21st, 23rd, and 25th Respondents are State Corporations and a Commission whose geographic sphere of operation is Kenya and cannot be heard to be lamenting of the matter not having been filed in Nairobi. Constitutional petitions against State Corporations can be filed in any high court in Kenya.”64.Rule 8 (1) of the Mutunga Rules provides:8.(1)Every case shall be instituted in the High Court within whose jurisdiction the alleged violation took place.(2)Despite sub-Rule (1), the High Court may order that a petition be transferred to another court of competent jurisdiction either on its own motion or on the application of a party.65.Courts must always strive to strike a balance between the principles of territorial jurisdiction, the right to access justice and the right to have any dispute determined by the Court, a key cornerstone of the Rule of law. Decisions on objections citing territorial jurisdictional should be made on a case-by- case basis, taking into account the specific circumstances of the case and the potential impact on the party's ability to access justice. Turning to the facts of this case, it is common ground that the 1st appellant is based in Eldoret while the 3rd appellant is based in Nairobi, and the 30th respondent is based in Mombasa. The said parties are all State agencies and there is no dispute that they all have presence in many parts of the country nor are their operations strictly confined to the areas they are located. Going by the appellants’ argument, it means that a strict interpretation and application of Rule 8 (1) would mean that the 1st to 7th respondents ought to have filed their petitions before the High Courts in the three jurisdictional areas where the said entities have their headquarters because the alleged violations took place in the said jurisdictions. Such an interpretation, if upheld would lead to an absurdity or undesired results because it means three petitions will be filed in three different High Courts by the same petitioners against the same respondents based on the same subject matter. This will vex the respondents with multiplicity of suits, coupled with the risk of issuance of contradictory decisions by the courts seized of the matters. The law does not permit a litigant to file different suits in different courts on the same subject matter against the same party or their privies. We are persuaded by the decision rendered by the Environment and Land Court in Chrispinus Munyane Papa & Ano. vs. National Environment Management Authority & Ano. [2018] eKLR, where, the court opined that:“…The Practice and Procedure Rules 2013 are subordinate to the Constitution, they do not limit the Court’s jurisdiction to deal with the issues raised in the Petition but provide guidance on where matters should be filed for the Court’s good governance and operations…”66.This Court in Musa vs. Mustafa & Ano. [2025] KECA 677 (KLR) on geographical jurisdiction held:“55...there is only one High Court in Kenya which enjoys unlimited geographical limitations but has different administrative units and sits in different places. As such, there is no legal difficulty whatsoever in the High Court sitting in one place to transfer a suit or appeal to be heard at the High Court sitting in another place if the ends of justice are better served that way.”67.In any event, the introduction of e-filing system and the virtual hearing of cases, means the parties can file court documents and attend online hearings from the comfort of their offices or homes. Therefore, no prejudice will be suffered by the appellants if these proceedings are heard and determined in the Nakuru High Court. In fact, we heard this appeal virtually and all the parties logged into the sessions from the comfort of their offices. Also, court documents are now served electronically, making it cheaper and real time. It is also important to mention that Rule 3 (5) (d) of the Mutunga Rules permits use of appropriate technology in order to achieve the overriding objective of the Rules stipulated in Rule 5. A litigant cannot pick Rule 8 alone and run away with it without considering the overriding objective of the Rules as stipulated in Rule 3. This is because an interpretation of the Rules that stifles the objectives of the Rules as opposed to achieving the overriding objective as provided in Rule 3 ought to be avoided. Lastly, as provided under Rule 3 (2) the overriding objective of the Rules is to facilitate access to justice for all persons as required under Article 48 of the Constitution. Interpreting Rule 8 in the manner suggested by the appellants is a clear affront to this Rule in the circumstances of this case. We have said enough to demonstrate that there is no basis upon which we can fault the learned judge’s finding on the objection premised on territorial jurisdiction.” 53.This Court has no reason to differ from the above well written binding decision on the question of territorial jurisdiction especially where respondents as the ones before this Court, are all state agencies and have their headquarter offices in the Capital City of Nairobi, where the High Court has a dedicated Division of the Court hearing and determining Constitutional and human Rights violations questions. 54.From the facts of this case, it is clear that the Petitioner’s grievance arises from Vihiga County. The original Petition however, references the High Court at Kakamega as the place of filing. It was not clear to this Court how the subsequent pleadings ended up being filed in the High Court at Nairobi and in this Division. Be that as it may, the question for this Court is whether such an issue fatally defeats the Petitioner’s cause of action and in view of the above cited binding decisions, I have no hesitation in finding and holding that this Court has territorial jurisdiction to hear and determine the petition even though the alleged violations are said to have taken place in Vihiga County. 55.I am equally persuaded by an earlier decision in Swiss Deli Trade (Panama) Inc v Privamnuts EPZ Kenya Limited [2020] eKLR) where the Court held that filing of a case in a court that has no territorial jurisdiction does not render that case fatally defective as the case can be transferred to the Court with territorial jurisdiction to hear and determine. The Court stated as follows:“Amongst the objectives for the provisions on place of suing is to ensure that suits are filed in as much as possible where the cause of action arose or where the subject matter is situate or in some instances where the Defendant arises. Suits should not be instituted in places that causes unnecessary hardship to the Defendant and which may hinder access to justice. Again, suits should not be lumped in one station when they could be heard elsewhere as this may lead to clogging up of some Courts in a way that flies in the face of equitable access to justice.The provisions of Section 15 which restricts the institution of suits within the local limits of High Court stations should be viewed in that light. So that “territory jurisdiction” placed by Section 15 does not mean that the “wrong” High Court does not have substantive jurisdiction in respect to the matter.If I understand the rationale for the provisions of place of suing to be as discussed above, then this Court has power to simply transfer this suit to the place it should have been filed in the first place.This Court is not bereft of substantive jurisdiction but must pay homage to the noble objective of the provisions of Section 15 in ordering the place of suing as it does.This Court upholds the Preliminary Objection under the provisions of Section 15 of The Civil Procedure Act with costs to the Defendant. However, the suit shall not be dismissed. Instead, the Court orders that it be transferred to the High Court at Embu for hearing and disposal.(See also Kanampiu & another v Marithi (Civil Case E009 of 2023) [2025] KEHC 7699 (KLR) ) 56.Thus, even though the petition herein ought to have been instituted before the High Court at Vihiga, where the cause of action arose, the mere fact that it was filed in the High Court at Nairobi does not warrant dismissal of the proceedings. The proper course would be to order a transfer to the court of competent territorial jurisdiction, in light of the High Court’s inherent jurisdiction under Article 165 of the Constitution. 57.In Kagenyi v Musiramo [1968] EA 43, the Court emphasized that transfer of suits is a matter of judicial discretion aimed at ensuring justice rather than defeating it on technical grounds. Similarly, it is my finding that procedural errors in forum selection should not bar substantive adjudication and that transfer is the appropriate remedy to uphold the ends of justice. 58.That said, I note that the respondents are all state entities and although they have branches or county offices, in many parts of Kenya, they are all headquartered at Nairobi. Applying the principles espoused in the above cited decisions, especially Moi Teaching and Referral Hospital & 3 others v Gikenyi B & 152 others (Civil Appeal E107 & E116 of 2024 (Consolidated)), as upheld by the Supreme Court, I find and hold that this Court’s territorial jurisdiction to hear and determine the petition is not ousted. I therefore decline the invitation to decline jurisdiction on account of territorial jurisdiction of this Court. 59.Having established this, I now proceed to determine the second limb of jurisdiction with respect to the questions of whether the petition and application for conservatory orders offend the twin doctrines of exhaustion and constitutional avoidance. 60.The petitioner’s beef with the respondents is the alleged continued electricity disconnection at the Petitioner’s home in Kaimosi Complex in Vihiga County, by Kenya Power and Lightning Company -KPLC, which he decries has not been resolved despite formal requests and demands made to the 4th Respondent. He also complains that the KPLC’s monopoly is power supply has caused all these alleged offending actions as it has no alternative competitors. 61.The question for the Court is whether such a dispute can find merit as a constitutional dispute. In discussing this, This Court finds that Article 23(1) of the Constitution confers original jurisdiction on the High Court to redress violations of the Bill of Rights and so does Article 165(3) of the Constitution. The only issue is whether every dispute involving allegations of violations of a constitutional right must necessarily be initiated in the High Court. 62.As was observed in Rich Productions Ltd v Kenya Pipeline Co. [2014] eKLR, the existence of statutory mechanisms and administrative tribunals reflects a constitutional vision of accessible, efficient, and expert resolution of specialized disputes. The fact that such determinations are subject to review or appeal to the High Court ensures that constitutional fidelity is maintained. The holding by the Court in the above cited case was that:“The reason why the Constitution and the law establish different institutions and mechanism for dispute resolution in different sectors is to ensure that such disputes as may arise are resolved by those with the technical competence and the jurisdiction to deal with them. While the Court retains the inherent and wide jurisdiction under Article 165 to supervise bodies such as the 2nd respondent, such supervision is limited in various respects which I need not go into here. Suffice to say that it cannot exercise such jurisdiction in circumstances where the parties before it seek to avoid the mechanisms and processes provided by law, and convert the issue in dispute into a constitutional issue when it is not.” 63.InGeoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, the Court of Appeal stated that:“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution." 64.The Court of Appeal in the above Geoffrey Muthiga case also elaborately discussed with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -“59.However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R v Independent Electoral and Boundaries Commission (IEBC) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus: What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue(and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, and that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others v Aelous (K) Ltd and 9 Others.)60.As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.61.The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.62.In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court." 65.Thus, albeit Article 165(3) of the Constitution confers on the High Court original jurisdiction in constitutional matters and human rights violations such as those alleged by the Petitioner herein, this jurisdiction is inherently constrained by the now established doctrine of exhaustion of administrative remedies and the doctrine of constitutional avoidance. 66.As seen above, the doctrine of exhaustion stipulates that where a statute provides an elaborate, specialized dispute resolution mechanism, an aggrieved party must first pursue and exhaust those statutory avenues before seeking judicial intervention. The doctrine has its origin in Speaker of National Assembly v. Njenga Karume [1992] 1KLR 425 where the Court of Appeal held that: -“There was considerable merit in the submission that where there was a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament that procedure should have been strictly followed.” 67.The Supreme Court in Albert Chaurembo Mumba & 7 Others v. Maurice Munyao & 148 Others [2019] eKLR held that, courts must exercise restraint and deference to statutory bodies established by Parliament to deal with specific technical disputes in the first instance. The apex court observed thus: -“(118). In the pursuit of such sound legal principles, it is our disposition that disputes disguised and pleaded with the erroneous intention of attracting the jurisdiction of superior courts is not a substitute for known legal procedures. Even where superior courts had jurisdiction to determine profound questions of law, first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the disputes as provided for in the relevant parent statute.” 68.In simpler terms, parties are not expected to bypass known legal procedures through artful or multifaceted pleading by invoking this Court’s original jurisdiction. This principle finds further anchorage in the statutory framework of Section 9(2) and (3) of the Fair Administrative Action Act, 2015, which Act implements Article 47 of the Constitution that guarantees every person the right to fair administrative action. The section explicitly bars the High Court from reviewing administrative decisions or grievances unless all internal and statutory mechanisms for appeal or review are first exhausted. 69.The Mutunga Rules at Rule 31 also recognises the use of alternative dispute resolution and provides that the Court may refer a matter for hearing and determination by alternative dispute resolution mechanism. 70.In an earlier decision of Uhuru Muigai Kenyatta vs Nairobi Star Publication Limited [2013] eKLR Lenaola J (as he then was in the High Court) stated: -“…Where there is a remedy in civil law, a party should pursue that remedy and I say so well aware of decision of Haco Industries where the converse may have been expressed as the position. My mind is clear however that not every ill in the society should attract a constitutional sanction as stated in AG V Dutambala Criminal Appeal No. 37 of 1991 (Tanzania Court of Appeal) such sanctions should be reserved for appropriate and really serious occasions…” 71.Having already established that the core of the Petitioner’s grievance revolves around the disconnection of power, billing disputes and allegations of monopolistic conduct by the 4th Respondent, KPLC; and having equally considered the provisions of the Energy Act, 2019 and the Competition Act, I now proceed to establish whether there are effective alternative statutory dispute resolution mechanisms that the petitioner ought to first have resorted to before approaching this Court, as alleged by the 4th respondent in its notice of preliminary objection under discussion. 72.Section 160(3) of the Energy Act specifically provides that any dispute arising as to electricity charges or supply shall be referred to the Energy and Petroleum Regulatory Authority (EPRA). Section 25 of the Energy Act establishes the Energy and Petroleum Tribunal while Section 36 (1) and (3) provide that the Tribunal possesses original civil jurisdiction over disputes between licensees and third parties. Powers of the Tribunal are found at Section 36 (5) which include to grant equitable reliefs including injunctions and damages. Appeals from decisions of EPRA then lie to the Tribunal under Section 40 and only thereafter may an aggrieved party appeal to the High Court pursuant to Section 37(3) of the Act. 73.It is important to reproduce those provisions here for clarity:160.When supply of electrical energy may be refused or discontinued……(3)If any dispute arises as to—(a)any charges;(b)the application of any deposit;(c)any illegal or improper use of electrical energy;(d)any alleged defects in any apparatus or protective devices; or(e)any unsuitable apparatus or protective devices, it shall be referred to the Authority.36.6.Jurisdiction of the Tribunal(1)The Tribunal shall have jurisdiction to hear and determine all matters referred to it, relating to the energy and petroleum sector arising under this Act or any other Act.(2)The jurisdiction of the Tribunal shall not include the trial of any criminal offence.(3)The Tribunal shall have original civil jurisdiction on any dispute between a licensee and a third party or between licensees.(4)The Tribunal shall have appellate jurisdiction over the decisions of the Authority and any licensing authority and in exercise of its functions may refer any matter back to the Authority or any licensing authority for re-consideration.(5)The Tribunal shall have power to grant equitable reliefs including but not limited to injunctions, penalties, damages, specific performance.(6)The Tribunal shall hear and determine matters referred to it expeditiously.37.Power of review and appeals from Tribunal(1)The Tribunal may, on its own motion or upon application by an aggrieved party, review its judgments and orders.(2)Judgments and orders of the Tribunal shall be executed and enforced in the same manner as judgments and orders of a court of law.(3)Any person aggrieved by a decision of the Tribunal may, within thirty days from the date of the decision or order, appeal to the High Court.(4)The law applicable to applications for review to the High Court in civil matters shall, with the necessary modifications or other adjustments as the Chief Justice may direct, apply to applications for review from the Tribunal to the High Court. 74.As shown above, the Energy Act creates a comprehensive three-tiered regulatory and adjudicative mechanism to handle such grievances: from the Authority to the Tribunal and finally to the High Court. 75.The Petitioner further complained that the 3rd Respondent, Competition Authority failed to end KPLC’s monopoly and to implement open market competition, despite the Cabinet-approved National Energy Policy 2025–2034 and the lifting of the Power Purchase Agreements (PPA) moratorium in late 2025. 76.Under Sections 9(1)(b) and 40 of the Competition Act, complaints must first be lodged with the Competition Authority of Kenya with appeals going to the Competition Tribunal under Section 74 before escalating to the High Court. Thus, there exists a similar statutory pathway for consideration of this issue of monopoly of KPLC and competition, under the Competition Act Cap. 504 which addresses grievances regarding market dominance and consumer protection. 77.The relevant provisions state:9.Functions of the Authority(1)The functions of the Authority shall be to—(a)promote and enforce compliance with the Act;(b)receive and investigate complaints from legal or natural persons and consumer bodies;(c)promote public knowledge, awareness and understanding of the obligations, rights and remedies under the Act and the duties, functions and activities of the Authority;(d)promote the creation of consumer bodies and the establishment of good and proper standards and rules to be followed by such bodies in protecting competition and consumer welfare;(e)recognize consumer bodies duly registered under the appropriate national laws as the proper bodies, in their areas of operation, to represent consumers before the Authority;(f)make available to consumers information and guidelines relating to the obligations of persons under the Act and the rights and remedies available to consumers under the Act;(g)carry out inquiries, studies and research into matters relating to competition and the protection of the interests of consumers;(h)study government policies, procedures and programmes, legislation and proposals for legislation so as to assess their effects on competition and consumer welfare and publicise the results of such studies;(i)investigate impediments to competition, including entry into and exit from markets, in the economy as a whole or in particular sectors and publicise the results of such investigations;(j)investigate policies, procedures and programmes of regulatory authorities so as to assess their effects on competition and consumer welfare and publicise the results of such studies;(k)participate in deliberations and proceedings of government, government commissions, regulatory authorities and other bodies in relation to competition and consumer welfare;(l)make representations to government, government commissions, regulatory authorities and other bodies on matters relating to competition and consumer welfare;(m)liaise with regulatory bodies and other public bodies in all matters relating to competition and consumer welfare;(n)advise the government on matters relating to competition and consumer welfare. 78.Under section 31, the Authority may investigate any complaint received while section 33 provides that the Authority may take evidence at the hearing of the complaint after investigations, before rendering a proposed decision to the parties. Section 36 provides for action after investigations while section 37 provides for interim relief. Under section 39, the Authority is to publish its decision in the Kenya Gazette while section 40, is on appeals and it provides:40.Appeals to the Tribunal(1)A person aggrieved by a determination of the Authority made under this Part shall appeal in writing to the Tribunal within thirty days of receiving the Authority's decision.(2)A party to an appeal under subsection (1) who is dissatisfied with the decision of the Tribunal may appeal to the High Court against that decision within thirty days after the date on which a notice of that decision has been served on him and the decision of the High Court shall be final. 79.From the above detailed discussion, it emerges that the essence of the doctrine of exhaustion is that it safeguards judicial time, promotes orderly dispute resolution and respects the hierarchy of institutions by ensuring that courts are not prematurely invoked where specialized fora exist. 80.Analogous to the doctrine of exhaustion are the doctrines of constitutional avoidance, ripeness and justiciability. The doctrine of constitutional avoidance has been defined as a principle of judicial restraint which dictates that courts must resolve disputes on non-constitutional grounds whenever possible, strictly avoiding ruling on constitutional matters unless absolutely necessary to the case's disposition. 81.This doctrine of avoidance precludes the Court from invoking the Constitution to settle controversies that can conveniently be dealt with on any other legal basis other than the Constitution. Thus, disputes that may appropriately be resolved on the basis of a statute or regulatory regime or other established legal principles should not be disguised and tried as Constitutional litigations. 82.Expounding on this doctrine, the Court in Ibrahim Wakhanyanga & 2 others v Chief Magistrate’s Court Kakamega & 2 others; Attorney General for Land Registrar Kakamega (Interested party) [2022] eKLR observed thus:“17.One of the instances in which a constitutional court loses jurisdiction is through the doctrine of constitutional avoidance. Thus, where there exist ample statutory avenues for resolution of a dispute, the constitutional court will defer to the statutory options and decline to entertain such a dispute. A party seeking relief in a matter that can be addressed through interpretation of statutes and rules made thereunder must seek relief through an ordinary suit as opposed to a constitutional petition. In that regard, the Court of Appeal stated in Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] eKLR as follows:“Where a legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the Constitution without challenging the legislation in question. That principle has been reinforced by the Supreme Court in Communications Commission case (supra).(17)In conclusion, we find that the alleged unlawful interdiction and termination of a contract of employment was not a constitutional issue and thus the petition did not disclose a cause of action anchored on the Constitution. Accordingly, the petition being incompetent, the court acted in excess of jurisdiction and erred in law in determining the petition. ..18.Similarly, the same court stated in Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another [2016] eKLR thus: Time and again it has been said that where there exists other sufficient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the Constitutional Court by bringing actions that could very well and efficient be dealt with in that other forum. Such party ought to seek redress under such other legal regime rather than trivialize constitutional litigation.…A corollary to the foregoing is the principle of constitutional avoidance. The principle holds that where it is possible to decide a case without reaching a constitutional issue that should be done.” 83.In C O D & another vs Nairobi City Water & Sewerage Co. Ltd (2015) eKLR, the Court observed:“11.Similarly, in Papinder Kaur Atwal -vs- Manjit Singh Amrit Nairobi Petition No. 236 of 2011 whereafter considering several authorities on the issue, Justice Lenaola remarked as follows:“All the authorities above would point to the fact that the Constitution is a solemn document, and should not be a substitute for remedying emotional personal questions or mere control of excesses within administrative processes….. I must add the following; Our Bill of Rights is robust. It has been hailed as one of the best in any Constitution in the World. Our Courts must interpret it [with] all the liberalism they can marshall. However, not every pain can be addressed through the Bill of Rights and alleged violation thereof.” (Emphasis added).40.In Re Application by Bahadur[1986] LRC (Const), the Supreme Court of India held that ordinary remedies available under common law and statutes must be pursued in the ordinary manner or as provided under statute. At page 307, the Court stated:“The Courts have said time and again that where infringements of rights are alleged which can be founded in a claim under substantive law, the proper course is to bring the claim under such law and not under the Constitution. This case highlights the un-wisdom of ignoring that advice.... the Constitution sets out to declare in general terms the fundamental concepts of justice and right that should guide and inform the law and the actions of men. While an infringement of the Constitution might in certain cases give rise to the redress provided for at section 14, yet, as has been proclaimed by the highest Court in the land, it is not, “a general substitute for the normal procedures for invoking judicial control of administrative action.” (See Harrikissoon v A-G [1979] 3 WLR 62).13.It was further observed in the case of Minister of Home Affairs vs Bickle & Others (1985) LRC Const(per (Georges C.J);Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a Court will usually decline to determine whether there has been in addition a breach of the Declaration of Rights.”41.Further holding in Sports and Recreation Commission v Sagittarius Wrestling Club and Anor [2001] (2) ZLR 501 (S) was that :“…Courts will not normally consider a constitutional question unless the existence of a remedy depends upon it; if a remedy is available an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of Rights.” 84.Further, in Valentine Odhiambo& 2 others v Hf Development & Investment Ltd & another [2021] KEELC 392 (KLR), the Court observed that constitutional litigation should not be the first port of call where other mechanisms are adequate and available. The Court held that courts should avoid deciding constitutional issues if a matter can be resolved through statutory or administrative mechanisms. In arriving at that decision, the court stated as follows:“The 1st Respondent’s objection which is supported by the 2nd Respondent is that the Petition offends the doctrine of constitutional avoidance. In so doing, the 1st Respondent referred to the Supreme Court decision in Communications Commission of Kenya and 5 Others vs Royal Media Services Limited & 5 Others (Supra). The Supreme Court held that the principle of avoidance entails that a court will not determine a constitutional issue when a matter may properly be decided on another basis. The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition.”The Court further stated:“On the jurisdiction of the Water Tribunal established under the Water Act, this Court agrees with the Petitioners that it would not have the jurisdiction to determine any dispute (if any) between the 2nd Respondent. Section 121 of the Water Act, 2016 stipulates the jurisdiction of the Tribunal. First and foremost being to handle appeals from the decisions of the Cabinet Secretary, the Authority and Regulatory Board or any other person acting under their authority. Secondly, the Tribunal shall hear and determine any dispute concerning water resources or water services where there is a business contract and where parties have not otherwise agreed on alternative dispute resolution mechanism.” 85.In the instant case, the Energy Act and the Competition Act offer structured frameworks that permits the filing and investigation of complaints and the issuance of remedial directives by the Authorities established under the respective statutes. If dissatisfied with the outcome, the complainant retains the right to appeal to the Tribunals established under the two Acts and finally, to the High Court. The existence of this appellate jurisdiction ensures that constitutional issues that may arise from the actions of KPLC and the 3rd respondent Competition Authority of Kenya can ultimately be scrutinized by this Court. 86.In Faraj & 3 others v Police & 2 others [2022] KEHC 287 (KLR), the High Court emphasized that the doctrine of constitutional avoidance is essential in preventing the premature invocation of the Constitution and in maintaining the sanctity of judicial time and resources. The principle reinforces the notion that statutory remedies must be pursued to their logical conclusion unless their inadequacy is clearly demonstrated. 87.The petitioner has not utilised the above identified available and effective statutory mechanisms for resolution of his grievances nor did he seek exemption and with reasons, from resorting to those statutory mechanisms which are obligatory mechanisms. No exceptional circumstances have been demonstrated to warrant this Court to exercise discretion to exempt the petitioner from first exhausting the statutory mechanisms. 88.Accordingly, I find and hold that the Petitioner herein framed a routine electricity disconnection dispute as a violation of fundamental rights falling under Articles 27, 28, 43, 46, and 47 of the Constitution, without first exhausting the available statutory mechanisms. Resort to these alternative dispute resolution mechanisms also find support in Article 159(2)(c) of the Constitution and unless it is shown that the statutory remedies are inadequate or not available at all, thereby necessitating an exemption, and as it has not been demonstrated that these statutory mechanisms are ineffective or that they violate the Bill of Rights or are repugnant to justice and moralityor resort to them would result in outcomes that are repugnant to justice or morality; or are inconsistent with this Constitution or any written law; I find that the constitutional petition as filed was premature. 89.I further reiterate that; the petitioner’s constitutional claims are intrinsically linked to statutory energy and competition grievances that can be fully and effectively resolved through the established specialized statutory tribunals. 90.Off course, this Court exercises supervisory jurisdiction over tribunals as provided for under Article 165(6) and (7) of the Constitution. However, as has been demonstrated above, it was not ripe for this Court to intervene into the dispute between the Petitioner and the respondents, against whom the reliefs are sought. 91.For all the above reasons, the Petition and the Application for conservatory orders as filed by the Petitioner are found to be premature and offending the doctrines of exhaustion and constitutional avoidance. 92.In the end, the Notice of Preliminary Objection dated 7th May, 2026 succeeds. It is upheld to the extent that both the Petition and the Application 27th April 2026 are hereby struck out for offending the doctrine of exhaustion and constitutional avoidance. 93.The petitioner is at liberty to engage the available statutory mechanisms for redress of his grievances. 94.Each party shall bear their own costs of the petition. 95.This file is closed. 96.Orders accordingly. DATED, SIGNED & DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF AUGUST, 2026R.E. ABURILIJUDGE