https://new.kenyalaw.org/akn/ke/judgment/keet/2026/15

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: ENERGY AND PETROLEUM TRIBUNAL CASE NUMBER: EPA/E044/2025 JAMES OMINGO MAGARA VS KENYA POWER AND LIGHTING COMPANY JUDGMENT A. INTRODUCTION 1. This appeal arises from the determination of the Energy and Petroleum RegulatoryAuthority (“EPRA” or “the Authority”) delivered on 1st October 2025 in Complaint No. EPRA/CP/4/63084221/2025 between the parties herein. In its determination, EPRA found that the Respondent had failed to place sufficient evidence before it to establish allegations of meter tampering and consequently held that the disconnection of the electricity supply to the Appellant's premises was irregular and unlawful. The Authority, however, declined to award the Appellant compensation for the losses allegedly occasioned by the disconnection, finding that the claim for damages had not been proved. 2. The Appellant, aggrieved by that part of the determination declining compensation,lodged the present appeal vide a Memorandum of Appeal dated 28th October 2025. The appeal is premised on the contention that, having found the disconnection unlawful, the Authority erred in law and fact by failing to award damages for the losses allegedly suffered. 3. The Respondent opposes the appeal and maintains that the Authority correctly declinedto award damages on account of the Appellant's failure to prove the alleged losses. The Respondent further contends that claims for loss of income, business interruption, spoilage of stock and other consequential losses constitute special damages which must be specifically pleaded and strictly proved. It is the Respondent's position that the evidence placed before the Authority fell short of the legal threshold necessary to sustain an award of compensation. # B. APPELLANT’S SUBMISSIONS 1. The Appellant submits that the Authority erred in law and fact by declining to awardcompensation after finding that the Respondent's disconnection of electricity supply was unlawful and irregular. According to the Appellant, once EPRA determined that there was no evidence of meter tampering and consequently found the disconnection unjustified, the Authority ought to have proceeded to grant an appropriate remedy for the wrong suffered. 2. The Appellant contends that the purpose of damages is to restore an injured party to theposition he would have occupied had the wrongful act not occurred and that the Authority's failure to award any compensation left him without a remedy despite a clear finding of wrongdoing by the Respondent. 3. The Appellant further submits that EPRA improperly dismissed the claim on the basis thatspecial damages had not been proved to a technical standard. He argues that he placed before the Authority bank records and testimonial evidence demonstrating a significant reduction in business income during the period of disconnection and further established that he operated a dairy business and rental units that depended on a continuous electricity supply. According to the Appellant, the interruption resulted in spoilage of dairy products, loss of business income and disruption of his operations. 4. The Appellant relies on the decision in **Gisaga v Kenya Power & Lighting Company Limited [2025] KEET 14 (KLR)** and submits that loss of business income is a compensable claim in electricity disputes. He contends that once liability had been established, the Authority was under a duty to assess and award damages rather than dismiss the entire claim. In his view, the failure to prove special damages with mathematical precision could not justify the rejection of the entire claim where evidence demonstrated that loss had in fact occurred. 5. The Appellant also cites the decision in **Muroria v Kenya Power and Lighting Company Ltd [2025] KEET 11 (KLR)** which quoted the case of **Kenya Power & Lighting Co. Ltd versus Zubeda Baisha Athman & 4 Others [2017] eKLR,** for the proposition that where power is unlawfully disconnected, the customer becomes entitled to damages as a means of restoring him to the position he would have been in had the wrongful disconnection not occurred. 6. It is the Appellant's position that EPRA adopted an overly rigid and technical approach toproof of damages, contrary to the principles of fairness, equity and substantive justice that guide proceedings before administrative and quasi-judicial bodies. He contends that the Authority failed to properly evaluate the evidence tendered and neglected to undertake a reasonable assessment of the losses suffered. Consequently, the Appellant urges the Tribunal to find that EPRA erred in law and to set aside the decision declining compensation, assess and award appropriate damages, and allow the appeal with costs. C. RESPONDENT’S SUBMISSIONS 1. The Respondent opposed the appeal and submitted that the Appellant was not entitledto any of the reliefs sought. The Respondent identified two issues for determination, namely whether the disconnection of the electricity supply was justified and whether the Appellant was entitled to the reliefs sought. 2. This Tribunal has, however, not considered the Respondent’s submissions on whetherthe disconnection was justified. The legality or otherwise of the disconnection was not a matter placed before this Tribunal for determination by way of the Memorandum of Appeal neither did the Respondent file a cross-appeal on that issue. Consequently, the issue falls outside the scope of this appeal, and this Tribunal's mandate is confined to the grounds raised by the Appellant’s Memorandum of Appeal. On the issue of the Respondent’s application for review before EPRA, the same is also not before us. 3. On the claim for damages, the Respondent submits that the Appellant failed to prove thealleged losses. It argues that the claim for Kshs. 4,295,000.00 constitutes special damages which must not only be specifically pleaded but must also be strictly proved. Relying on the decision in **Swalleh C. Kariuki & Another v Violet Owiso Okuyu [2021] KEHC 4863 (KLR)**, the Respondent contends that proof of special damages requires production of actual receipts or documentary evidence demonstrating the loss suffered. The Respondent maintains that the Appellant produced no such evidence and therefore failed to discharge the burden of proof required in law. 4. The Respondent urges the Tribunal to find that the Appellant failed to prove thedamages claimed and that the appeal lacks merit. The Respondent accordingly prays that the appeal be dismissed with costs. # ISSUES FOR DETERMINATION 14. Having carefully considered the Memorandum of Appeal, the Record of Appeal, the parties’ submissions and the determination of the Authority, this Tribunal is of the view that the appeal substantially turns on a single question, which is whether the Appellant was entitled to the reliefs sought before EPRA arising from the unlawful disconnection of electricity supply. **E. ANALYSIS AND DETERMINATION** # Whether the Appellant was entitled to the reliefs sought before EPRA arising from the unlawful disconnection of the electricity supply 1. The Appellant's complaint before EPRA was premised on two distinct limbs. First, hechallenged the legality of the disconnection of the electricity supply. Secondly, he sought compensation amounting to Kshs. 4,295,000.00 for alleged business losses, loss of rental income, spoilage of dairy products, reputational injury and other consequential losses allegedly occasioned by the disconnection. 2. EPRA, after considering the material before it, found that the Respondent had notadduced sufficient evidence to establish meter tampering and consequently held that the disconnection of the electricity supply was irregular and unlawful. However, the Authority declined to award compensation, holding that the losses claimed had not been proved. This is the aspect of the determination challenged in the present appeal. 3. The Appellant argues that once EPRA found the disconnection unlawful, compensationought to have followed as a matter of course. He contends that he produced bank statements and oral testimony demonstrating diminished business income and that the Authority applied an unduly technical standard of proof. The Appellant submits that the oral testimony and bank records demonstrate reduced business activity during the period of disconnection. 4. The Appellant claimed a sum of Kshs. 4,295,000.00. EPRA found that the Appellant hadnot produced sufficient documentary evidence to substantiate those losses. The record of Appeal does not demonstrate that audited accounts, business records, tenancy records, inventory records, receipts, invoices, profit-and-loss statements, valuation reports or any other evidence capable of quantifying the alleged losses were placed before EPRA. Therefore, the claim for Kshs. 4,295,000.00 was denied because there was insufficient evidence upon which such damages could be assessed. The sum of Kshs. 4,295,000.00 in respect of special damages which must be specifically proved. The Court of Appeal in Jogoo Kimakia Bus Services Ltd v Electrocom International Ltd [1992] KLR 177 stated that: *“The law on damages stipulates various types of damages. The distinction between general and special damages is mainly a matter of pleading and evidence. General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. Damages must be proved but the claimant may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.”* 1. However, we disagree with EPRA’s determination of not giving a remedy. Once a wronghas been established, the party that has been wronged deserves relief. EPRA unequivocally found that the Respondent's disconnection of the electricity supply was irregular and unlawful. Having found that the Respondent acted unlawfully, the Authority ought to have considered whether the circumstances justified an award of general damages. 2. In the case of **Kenya Power & Lighting Co. Ltd - VS -Zubeda Baisha Athman & 4 Others [2017] eKLR** Mr. Justice Said Chitembwa held that: *“ .... If the power is unlawfully disconnected then the power supplier is open to a claim for damages. Who pays for the discomfort caused to the customer due to the disconnection. Living in darkness for the period power is disconnected. Living without the electricity appliances such as television, fridge, radio or cooker. Lack of such appliances causes discomfort in life where one was already using them. How can the customer be restituted to the original position? The only way that can be done is through award of general damages. Given the evidence on record, I do find that the Respondent was entitled to an award of damages. The plaint pleaded for general and exemplary damages. The trial court correctly awarded general damages. The Respondent’s claim could not be limited to refund of KShs. 3,300/=. He was entitled to general damages. This is in line with the maxim that where there is an injury there is a remedy. The next issue is whether the damages awarded is excessive. The Respondent lost power on 20/3/2000 to 24/3/2000. This is a period of four days. If we prorate the damages awarded for a period of 30 days, a sum of KShs. 1,125,000/= could be awarded. The sum of Shs. 150,000 / = translates to KShs. 37,500/= per day. I do find that the award is quite excessive. Had the respondent used a generator for the four days he lost power, he couldn’t have spent KShs.150,000 / =. If there was a generator, the other losses like none utilization of the electrical appliances could not have resulted. I am satisfied that the award is excessive. 1 do set aside the award of KShs.150,000/= and replace it with* *KShs. 50,000…”* 1. This Tribunal relied on this decision in the case of **Muroria v Kenya Power and Lighting Company Ltd (Tribunal Case E020 of 2024) [2025] KEET 11 (KLR)** , where the court granted general damages of for the inconvenience caused over the 959 days that Appellant was without electricity supply be and are hereby awarded at KShs. 2,877,000. 2. In the present case, the Appellant's complaint dated 6th August 2025 indicates thatelectricity supply was unlawfully disconnected for a period of approximately twenty-eight (28) days, from 4th March 2025 to 1st April 2025. Having considered the authorities relied upon by the Appellant, particularly **Kenya Power & Lighting Co. Ltd v Zubeda Baisha Athman & 4 Others [2017] eKLR,** as cited with approval by the Tribunal in **Muroria v Kenya Power & Lighting Company Ltd [2025] KEET 11 (KLR**), together with the principle that a consumer ought to be compensated for the inconvenience and discomfort occasioned by an unlawful disconnection of electricity, this Tribunal is persuaded that an award of general damages is appropriate. 3. Taking into account the duration of the disconnection, the circumstances of the case,and the need to award reasonable and proportionate compensation, the Tribunal finds that an award of Kenya Shillings Three Hundred and Fifty Thousand (Kshs. 350,000.00) as general damages adequately compensates the Appellant for the inconvenience, distress and deprivation occasioned by the Respondent's unlawful disconnection of electricity supply. # F. DISPOSITION 24. Upon consideration of the pleadings in this application, the Tribunal makes the following determination: 1. The appeal is hereby partially allowed. 2. The Energy and Petroleum Regulatory Authority's determination dated 1st October 2025declining the claim for Kshs. 4,295,000.00 is hereby upheld. 3. The Energy and Petroleum Regulatory Authority's determination is set aside only to theextent that it failed to consider and award general damages arising from the unlawful disconnection of the electricity supply. 4. The Appellant is hereby awarded general damages in the sum of Kenya Shillings ThreeHundred and Fifty Thousand (Kshs. 350,000.00) for the inconvenience, distress and deprivation occasioned by the Respondent's unlawful disconnection of electricity supply. 5. The said sum shall attract interest at court rates from the date of this Judgment untilpayment in full. 6. Each party shall bear its own costs of the appeal. Dated and delivered at Nairobi, this 11th day of June 2026. ……………………..…… Ms. Doris Mwirigi Vice Chairperson ……………………..…… Eng. Buge Hatibu Wasioya Member ……………………..…… Mr. Feisal Shariff Ibrahim Member SIGNED BY/FOR: | | | --- | | **★ THE JUDICIARY OF KENYA ★** **HON. DORIS KINYA MWIRIGI** **BUGE HATIBU WASIOYA FEISAL SHARIFF IBRAHIM** ENERGY AND PETROLEUM TRIBUNAL ENERGY AND PETROLEUM TRIBUNAL Date: 2026-06-11 16:48:53 |