https://new.kenyalaw.org/akn/ke/judgment/keet/2026/13

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: ENERGY AND PETROLEUM TRIBUNAL CASE NUMBER: EPA/E060/2025 JULIUS ONKWARE AKUNGA VS KENYA POWER AND LIGHTING COMPANY PLC JUDGMENT 1. This judgement concerns two rival applications arising in the course of an appeal lodgedagainst the determination of the Energy and Petroleum Regulatory Authority (“EPRA” or “the Authority”) delivered on 3rd December 2025. The Appellant, Julius Onkware Akunga, suing as the representative of James Nyamanche Nyakeriga, challenges the Authority's finding that he lacked the requisite locus standi and seeks, inter alia, the restoration of electricity supply and enforcement of the interim reconnection orders previously issued by EPRA. The Respondent, Kenya Power & Lighting Company PLC, opposes the appeal and, by its own application, seeks the review, variation and setting aside of the Tribunal's interim orders issued on 23rd December 2025 on grounds that they were obtained through material non-disclosure, that the Appellant lacks *locus standi*, and that there exists no competent substantive appeal before the Tribunal. 2. Upon considering the nature of the dispute and the issues arising for determination, theTribunal directed that the appeal be disposed of by way of written submissions. The Tribunal has carefully considered the pleadings and the written submissions filed by the parties, and the authorities cited in support of their respective positions. # APPELLANT’S SUBMISSIONS 1. The Appellant submits that the appeal arises from EPRA's decision of 3rd December2025, which struck out his complaint on the ground that he lacked *locus standi* despite the Authority having heard the matter on its merits, received pleadings, affidavits, documentary evidence, submissions and a rejoinder from both parties. He argues that the Authority improperly resurrected a preliminary objection at the stage of judgment after the proceedings had substantially concluded, thereby committing an error of law and denying him substantive justice. 2. The Appellant contends that the Authority misdirected itself by holding that a registeredPower of Attorney was necessary for him to represent the account holder. He submits that he was duly authorised through a written Caretaker Agreement and Authority to Act executed on 1st November 2017, which was produced before the Authority and was never challenged as to its authenticity or validity. According to the Appellant, the dispute related to a consumer electricity complaint and not the transfer of proprietary interests, and therefore the strict requirements applicable to Powers of Attorney had no application. 3. The Appellant further submitted that the Energy Act and the Energy (Complaints andDispute Resolution) Regulations expressly permit consumers, employees, agents and authorized representatives to institute complaints and appeals before EPRA and the Tribunal. The Appellant maintains that he qualifies as an authorised representative, caretaker and manager of the premises, resides on the premises, consumes electricity supplied by the Respondent and pays the electricity bills. Consequently, he falls within the statutory definition of a consumer and has the requisite *locus standi* to lodge and prosecute the complaint. 4. Relying on constitutional principles, statutory provisions and judicial authorities, theAppellant submits that the Authority abdicated its statutory duty to protect consumers and resolve disputes on their merits. He urges the Tribunal to find that EPRA's decision was tainted by procedural impropriety, bias and misdirection in law, to hold that he possessed the requisite *locus standi* as a consumer and authorized representative, to set aside the Authority's determination, remit the complaint for determination on its merits or grant the appropriate reliefs, including compensation for the losses allegedly occasioned by the Respondent's unlawful actions. # RESPONDENT’S SUBMISSIONS 1. The Respondent submits that the appeal is fundamentally incompetent, as it arises from acomplaint that was properly struck out by the Authority for want of *locus standi*. It argues that the Appellant neither held the electricity account nor possessed any legally recognized authority, such as a Power of Attorney, to institute proceedings on behalf of the registered customer, James Nyamanche Nyakeriga. Consequently, the Authority correctly found that the caretaker agreement and authority to act relied upon by the Appellant did not confer the legal capacity to prosecute the complaint. 2. The Respondent also challenges the competence of the appeal before the Tribunal. Itsubmits that the Appellant merely filed an interlocutory application seeking interim orders but failed to file a substantive appeal, memorandum of appeal or record of appeal. As a result, there is no competent appeal upon which the Tribunal can exercise jurisdiction. The Respondent maintains that the Tribunal cannot grant substantive relief or determine issues that have not been properly pleaded, emphasising that parties are bound by their pleadings and that the Tribunal cannot determine matters outside the scope of the proceedings before it. 3. In conclusion, the Respondent urges the Tribunal to uphold EPRA's determination of 3rdDecember 2025, find that the Appellant lacked *locus standi* to institute and prosecute the complaint, declare that there is no substantive appeal before the Tribunal, set aside the interim orders issued on 23rd December 2025, and dismiss the proceedings with costs to the Respondent. # ANALYSIS AND DETERMINATION 10. The Tribunal has carefully considered the pleadings filed by the parties and the written submissions. Based on the arguments by the parties herein, the issues for determination are: 1. Whether there exists a competent and properly instituted appeal before this Tribunal. 2. Whether the Appellant had the requisite *locus standi* to institute and prosecute the complaint before the Tribunal **(A) Whether there exists a competent and properly instituted appeal before this Tribunal.** 1. The Respondent submits that there is no competent appeal before the Tribunal. Itargues that the Appellant merely filed an application under certificate of urgency seeking interlocutory relief without lodging a substantive appeal by way of a Memorandum of Appeal. Consequently, it contends that there is no appeal capable of invoking the Tribunal's appellate jurisdiction. 2. The Tribunal has carefully examined the documents dated 9th December 2025 and filedon 16th December 2025. Part of the documents is the document on page 19 which has the semblance of the memorandum of appeal. It clearly identifies the impugned decision, enumerates the grounds of challenge, and sets out the reliefs sought before the Tribunal. In substance, it bears all the characteristics of a memorandum of appeal. The Tribunal appreciates that the Appellant was acting in person and is not an advocate. It would therefore be inappropriate to subject his pleadings to the same standard of technical precision expected of professionally drafted pleadings. 3. The Tribunal's duty is to examine the substance rather than the form of the documentspresented before it. The Tribunal, guided by its nature and purpose of specialized tribunals, is not restricted to form. Moreover, Article 159(2)(d) of the Constitution obligates this Tribunal to administer justice without undue regard to procedural technicalities. As such, based on the pleadings before us, it is our determination that there is a proper appeal before us. # (B) Whether the Appellant had the requisite *locus standi* to institute and prosecute the complaint before the Tribunal 1. The central issue in this appeal is whether EPRA correctly determined that the Appellantlacked *locus standi* to institute and prosecute the complaint on behalf of the registered electricity account holder, Mr James Nyamanche Nyakeriga. In its determination delivered on 3rd December 2025, the Authority held that there was no privity of contract between the Appellant and the Respondent, The Authority further found that although the Appellant had produced a Caretaker's Agreement and an Authority to Act, the documents did not amount to a valid power of attorney as contemplated under Order 9 of the Civil Procedure Rules. Based on this, it struck out the complaint for want of locus standi. 1. The Tribunal begins by observing that, as a general rule, civil proceedings are institutedby and against the person in whom the cause of action vests. Order 1 Rule 1 of the Civil Procedure Rules contemplates that every suit shall ordinarily be brought by the person alleging that a legal right has been infringed. By this provision, a suit by a natural person must be instituted in his/her name and not the name of the agent. 2. Equally, Order 9 of the Civil Procedure Rules provides that where a party appearsthrough a recognized agent, such representation must be founded upon authority recognized by law. The rationale behind these provisions is to ensure that the person invoking the jurisdiction of a court or tribunal is the proper party or has lawful authority to act on behalf of the person whose rights are alleged to have been violated. 3. The dispute before the Authority was not instituted by the registered account holderhimself. Rather, it was filed by Julius Onkware Akunga, who described himself as the caretaker and representative of Mr. James Nyamanche Nyakeriga. The documents placed before the Authority included a Caretaker Agreement and a written authority. Based on this, the question will be whether those documents transformed the proceedings into a proper representative action in law. 4. In representative proceedings under the Civil Procedure Rules, a suit may be brought byone person on behalf of another. However representative suit are where there is common interest. It does not apply in this suit as this suit involves a contract and as such it had to be brought under the name of the consumer, in this case James Nyamanche Nyakeriga. 5. *Locus standi* is not a mere procedural technicality. It goes to the competence of proceedings because it determines whether the person before the adjudicative body is entitled to invoke its jurisdiction. If a party has no legal standing, then the authority would not be in a position to adjudicate the claim. 6. The proceedings before EPRA were not brought as a representative suit under Order 1 Rule 8 of the Civil Procedure Rules, nor were they instituted by a legal representative recognised under statute. They were instead brought by an individual asserting authority derived from the consumer. Such authority did not meet the legal requirements, and the case could only be brought under the name of the consumer or the account holder. 7. Accordingly, the Tribunal finds that the Authority was entitled to inquire into whetherthe Appellant possessed the requisite legal standing to institute the complaint. As a general proposition, a natural person must enforce his own legal rights unless another person is expressly authorized by law or by a legally recognized instrument. 8. The Appellant has placed considerable reliance on Rule 8(2) of the Energy (Complaintsand Dispute Resolution) Regulations, 2012, contending that the provision permitted him, as the caretaker and authorized representative of the account holder, to institute the complaint before the Authority. The Tribunal is unable to agree with that interpretation. 9. A proper reading of Rule 8 demonstrates that it governs representation duringproceedings rather than the institution of proceedings. The Rule permits a party to appear before the Authority through a representative, including an employee or agent duly authorised by the party. The object of the provision is to facilitate participation in the hearing by allowing a party who has filed a matter to be represented by another person. It does not create a substantive right for a third party to originate proceedings in his own name on behalf of another person. 10. Having carefully considered the appeal, the Tribunal is not persuaded that the Appellanthas demonstrated any error of law or fact on the part of the Authority warranting interference with its decision. The appeal is accordingly dismissed. Dated and delivered at Nairobi, this 2nd of July 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: 2026-07-03 08:45:04 |