Wanga v Kenya Power and Lighting Company Ltd (Civil Case 884 of 2001) [2026] KEHC 10113 (KLR) (Civ) (1 July 2026) (Ruling)

Wanga v Kenya Power and Lighting Company Ltd (Civil Case 884 of 2001) [2026] KEHC 10113 (KLR) (Civ) (1 July 2026) (Ruling) Neutral citation: [2026] KEHC 10113 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 884 of 2001 Sifuna Nixon, J July 1, 2026 Between George Ogosia Wanga Plaintiff and Kenya Power and Lighting Company Ltd Defendant Ruling 1.The Plaintiff a customer of the Defendant company, filed this suit after the Defendant disconnected supply of electricity to his premises. His Plaint dated 28th May 2001 has sought the following reliefs:a.A mandatory injunction to compel the Defendant by itself, its servants, agents and employees, to reconnect power and resume power supply to his premises known as House No. 70 situated on Plot No. 36-V-14 at Juja Road/Mathare Estate in Nairobi.b.A permanent injunction restraining the Defendant by itself, its servants, agents and employees, from disconnecting, cutting off or interrupting power to his said premises.c.Special damages of Ksh 485,000=.d.Costs of this suit.e.Interest on (c) and (d) above.f.Any other or further relief as this Court may deem fit to grant. The Preliminary Objection 2.The Defendant has raised a preliminary objection to this suit. The objection, which is dated 16th October 2024, seeks the dismissal of this suit on the ground that this Court lacks jurisdiction to entertain this matter. That this is by dint of the provisions of the Energy Act of 2019, as well as the Energy Complaints and Disputes Resolution Regulations of 2012. 3.That, which Act and Regulations, reserve the jurisdiction in such matters, to the Energy & Petroleum Regulatory Authority (EPRA), and the Energy & Petroleum Tribunal. That such disputes should come to the High Court only for adoption, or on Appeal. The Parties’ Submissions 4.The objection was canvassed by way of written submissions. Each party filed its respective submissions. In its submissions, the Defendant contended that this Court lacks jurisdiction for the reason that those are matters to be handled by EPRA as the first port of call. Which body was previously known as the Energy Regulatory Commission (ERC). That there is also the Energy & Petroleum Tribunal to which Appeals from EPRA are made. 5.It has further submitted that it is only when dissatisfied with the Tribunal’s decision on Appeal, that one can approach the High Court. That this suit had been filed in 2001 when there was the Electric Power Act of 1997; and that the Energy Act was an enhancement of the former. Further that there will be no prejudice if the dispute in this suit is handled by EPRA. 6.The Plaintiff has opposed the objection through a Replying Affidavit sworn by him on 25th November 2024, as well as through his filed submissions. In his submissions, he has submitted that this suit was filed in the year 2001 when the operative statute of the time was the Electric Power Act. Which Act, he contends, did not have any dispute resolution mechanisms. 7.Hence that this suit was properly filed in this court. He has relied on Kenya Power & Lighting Company Ltd v. Joseph Kiprono Kosgey [2012] KECA 90 (KLR). Where the Court of Appeal stated that for a suit instituted in 2005, the same was properly before the High Court. The Appeal arose from Kenya Power & Lighting Company Ltd v. Joseph Kiprono Kosgey [2005] KEHC 2971 (KLR, an Appeal from the Magistrate’s Court. 8.He has further contended that the Energy Act cannot operate retrospectively. On this, he also relied on Samuel Kamau Macharia & Another v. Kenya Commercial Bank & 2 Others [2012] KESC 8 (KLR). Where the court stated that for non-criminal legislation, the general rule is that statutes prima facie operate prospectively, unless it is clearly stated in the statute that it will operate retrospectively. Analysis and Determination 9.I have considered the preliminary objection as well as the parties’ rival submissions on it. I have also carefully rummaged through the Plaint. There are two issues for determination on this objection, namely:a.Whether the objection has merit; andb.What order(s) is appropriate to make? 10.As to the objection, the first port of call and indeed the prime consideration, is whether the objection is a proper objection to be raised as a preliminary objection. The lead authority on this point, is still Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696. Where the then Court of Appeal for East Africa in restating the legal threshold of a preliminary objection, stated that a preliminary objection should be on a pure point of law. One which if successful will determine the suit in limine. It gave the example of an objection on jurisdiction. The principle was endorsed by the Supreme Court of Kenya in IEBC v. Cheperenger & 2 Others [2015] KESC 2 (KLR). 11.Whether it succeeds or not, an objection on jurisdiction, as in this case, is a proper one to be raised as a preliminary objection. In Owners of the Motor Vessel “Lilian S” v. Caltex Oil [1989] KECA 48 (KLR), the Court of Appeal (Nyarangi, JA) observed that jurisdiction is everything, and that without it, a court should down its tools. 12.It was held by the Supreme Court in Macharia & Another v. Kenya Commercial Bank & 2 Others [2012] KESC 8 (KLR), that jurisdiction is conferred by the Constitution or a statute. The jurisdiction of the High Court of Kenya, is derived from Article 165 of the Kenya Constitution, as read with Article 162. Article 162 being on matters reserved for the Environment and Land Court, and the Employment and Labour Relations Court. 13.Article 165 gives the High Court original and unlimited jurisdiction in all civil and criminal matters. Subject to Article 162 matters; that are reserved to the two specialized courts. 14.The Defendant’s preliminary objection is that this court despite being the High Court, lacks jurisdiction to entertain this suit. That the jurisdiction in the suit’s dispute is reserved to EPRA. In my view, that is not the position. EPRA is established by an Act of Parliament; and not the Constitution. I hold that the High Court has jurisdiction in energy disputes. 15.Only that the exercise of the jurisdiction is deferred or delayed and subjected to exhaustion of statutory dispute resolution mechanisms under the Act. It is deferred or delayed, in that, these disputes are first to be handled by EPRA, then the Energy & Petroleum Tribunal, and thereafter come to the High Court either for adoption, or on Appeal. Such jurisdiction being exercisable after exhaustion and subject to statutory exhaustion. 16.What is deferred or postponed, is not the jurisdiction, but its exercise. In that jurisdiction is ordinarily exercisable after such statutory dispute resolution mechanisms where provided for, have been exhausted. Because the doctrine of exhaustion postpones the exercise of jurisdiction instead of merely sharing jurisdiction. 17.The belief that tribunals and bodies such as EPRA have divested the High Court of its jurisdiction, is a mistaken and misconceived one. The Court’s jurisdiction has only been deferred, but not been taken away by such entities. To avoid the confusion steadily taking root, this needs to be clarified. The Energy Act 18.I agree with the Plaintiff that this suit was filed in the year 2001 when the operative statute of the time was the Electric Power Act. The Act did not have the dispute resolution mechanisms akin to those in the current Energy Act. The said Act can therefore not be applied retrospectively on suits that existed before it. 19.It being a non-criminal legislation, the general rule is that such statutes prima facie operate prospectively, unless clearly stated in them that they will operate retrospectively. As for the Energy Act of 2019, the repeal and savings clauses in Section 224, and the transitional provisions in Section 225, do not expressly state that the Act operates retrospectively in respect of suits filed before its enactment. 20.Besides, Section 23(3) of the Interpretations and General Provisions Act (Cap 2 Laws of Kenya) provides that where a statute confers a right, the repeal of the statute does not extinguish that right. The section states as follows:Section 23(3)Provisions respecting amended written law, and effect of repealing written law“Where a written law repeals in whole or in part another written law, then, unless a contrary intention appears, the repeal shall not –a.Revive anything not in force or existing at the time at which the repeal takes effect: orb.Affect the previous operation of a written law so repealed or anything duly done or suffered under a written law so repealed; orc.Affect a right, privilege, obligation or liability acquired, accrued or incurred under a written law so repealed: ord.Affect a penalty, forfeiture or punishment incurred in respect of an offence committed against a written law so repealed; ore.Affect an investigation, legal proceeding or remedy in respect of a right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealed written law had not been made.” 21.Therefore, the repeal of the Electric Power Act did not affect any investigation, legal proceedings or a remedy that had already accrued. Neither did it divest this Court of jurisdiction to hear an ongoing matter such as this suit. Final Disposition 22.In the end, I hold that this Court has jurisdiction in this suit. Consequently, the preliminary objection is dismissed with costs. I need to point out that while a preliminary objection may be raised at any time in the proceedings, it is preferable that it be raised earlier in the proceedings, and even at the onset. This can prevent a waste of judicial time and resources that may be spent on a futile suit. 23.Therefore, while it may be raised at any stage of the proceedings, it should where practicable, be raised at the earliest possible opportunity. A delay in raising it may impede or undermine the efficient use of judicial resources and time. 24.This suit was filed in the year 2001, yet the preliminary objection was raised on 16th October 2024. Which is approximately 23 years after the suit was instituted; and almost five years after the coming into force of the Energy Act on which the objection is anchored. 25.Given the old age of this suit, I direct that it be listed for hearing within the next 60 days. During its pendency, no party may make any interlocutory Application without the express leave of the court. DATED AND DELIVERED AT NAIROBI VIRTUALLY ON THIS 1ST DAY OF JULY 2026.PROF (DR) NIXON SIFUNAJUDGE