[2022] KEHC 1756 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAMIRA

CIVIL APPEAL NO. E039 OF 2021

KENYA POWER & LIGHTING COMPANY...........APPELLANT

=VRS=

JAMES NJUGUNA MWANIKI...............................RESPONDENT

(Being an appeal against the Judgement of Hon. M. O. Wambani (Mrs.) – CM

Nyamira dated and delivered on the 13th day of April 2021 in the original

Nyamira Chief Magistrate’s Court Civil Case No. 156 of 2016)

JUDGEMENT

1. This appeal is in respect to two issues, namely: -

(a) Whether or not the Magistrate’s Court had jurisdiction, and

(b) Whether or not the trial court acted on the right principles when awarding exemplary and/or punitive damages.

2. In her judgement, the Learned trial Magistrate held that she had jurisdiction to hear and determine the case which was before her because: -

“……the dispute between the plaintiff and the defendant herein does not fall into any of the disputes provided under Section 61 (3) of the Energy Act, where the Energy Regulatory Commission has the mandate to handle. These disputes include:-

1. Any charges.

2. The application of any deposit.

3. Any illegal or improper use of electrical energy.

4. Any alleged defects in any apparatus or protective devices or

5. Any unsuitable apparatus or protective devices.”

3. It is well settled that if a court does not have jurisdiction, it lacks legal authority to handle the matter placed before it. Jurisdiction is vested upon a court, by law. When a court does not have explicit jurisdiction, it cannot confer the same upon itself.

4. Similarly, where a court lacks jurisdiction, the parties cannot confer jurisdiction even if they wished to do so, through a consent.

5. It was the appellant’s case that pursuant to the Energy Act 2006 (now repealed), any case involving the disconnection of electricity should be heard and determined by the Energy Regulatory Commission. The appellant submitted thus: -

“Under the said Act Section 59 (3) and Section 61 (3) of the Act provided as follows: -

If any dispute arises under this section, as to recalculation of electrical energy supplied to a customer or as to interference with any meter, such dispute shall be referred to the Commission for determination.”

6. It is common ground that electricity supply was disconnected from the plaintiff’s rented premises. The plaintiff felt that the said disconnection was totally unjustified, as the defendant did not have any reason that could justify it.

7. But the defendant’s position was that the dispute between the parties herein was in relation to electric charges, and that therefore the matter ought to have been placed before the Energy Regulatory Commission.

8. The said line of defence was first raised at paragraph 3 of the Defence, wherein the defendant indicated that it would raise a preliminary objection. However, the defendant failed to canvass its intended preliminary objection.

9. In the decision by the Court of Appeal in MUKHISA BISCUITS CO. LIMITED V WEST END DISTRIBUTORS LIMITED [1969] EA 696, Sir Charles Newbold explained that a preliminary objection: -

“…...raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

10. It would therefore follow that if the preliminary objection had been canvassed, it would have been on the assumption that the disconnection of power, from the plaintiff’s premises, was done without lawful authority or valid reasons.

11. The Court of Appeal, in the case of OWNERS OF THE MOTOR VESSEL “LILLIAN S” V CALTEX OIL (KENYA) LTD [1989] eKLR said: -

“……it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away, on the material before it.”

12. In the light of these clear guidelines, which were contained in the defendant’s submissions at the trial court, I am surprised that the defendant did not canvass its preliminary objection at the earliest possible opportunity. Instead, when the case came up for trial on 16th February 2021, the defendant’s Advocate Ms. Cheloti informed the court that her client was ready to proceed with the hearing.

13. When it is borne in mind that a court that lacks jurisdiction is obliged to down its tools forthwith, I find that the defendant’s conduct (of choosing to proceed with the trial) might be construed as an abandonment of the challenge which it had intended to raise with regard to jurisdiction. But I hasten to remind myself that jurisdiction cannot be conferred by parties, whether by conduct or by consent.

14. In the case of JOSHUA OCHANDA KIYONDI V KENYA POWER & LIGHTING CO. LTD [2019] eKLR the Court held as follows: -

“The question of whether or not there had been an interference with the meter was clearly an issue which should have been referred to the Commission by virtue of Section 59 (3) and Section 61 (3) (c): the Act provides a procedure for redress of grievances thereby ousting the court’s jurisdiction.”

15. SECTION 61 (3) OF THE ENERGY ACT specifies the disputes in respect to which the Energy Regulatory Commission has the mandate. But whilst it may be arguable that the facts of this case may be outside the scope of the expressly cited disputes, I find that the Section 61 (3) does not purport to limit the scope to only those cited within it. The provisions of Section 61 (3) expressly stated that the mandate of the Commission shall “include” those specified.

16. It therefore follows, that other disputes, which are not specifically cited in that section, may nonetheless be resolved by the Commission.

17. In its submissions, the appellant has stated thus: -

“The appellant was simply trying to recover an outstanding debt due and owing to them. From the pleadings and the testimony, it is quite clear that the respondent’s recourse lied (sic!) with its landlord.”

18. First, the appellant failed to produce any evidence to show that the respondent owed it any money. Secondly, the appellant was denying any nexus between it and the respondent. As far as the appellant was concerned, the respondent could only have taken legal action against his landlord. If that be the position, I find that there would have been no actionable dispute that could have been referred to the Commission; if indeed the appellant was right in its submissions.

19. The evidence clearly shows that it is the appellant who disconnected electricity from the respondent’s rented house. The appellant did not show that the landlord had taken the action which the respondent was complaining about. Therefore, the respondent was right to have instituted proceedings against the appellant. And when the appellant contends that it was not the right party to answer to the respondent’s complaints, I find that the respondent could not have been expected to move to the Commission, to have his complaints resolved. I so find because if the appellant genuinely holds the belief that the respondent could only have had recourse against the landlord, the plaintiff could not have instituted proceedings at the Commission, against his landlord.

20. In the event, it is wrong for the appellant to have adopted a dualistic approach to this matter, alleging that the Commission has jurisdiction (as the appellant is a licencee under the Energy Act); whilst also asserting that the respondent ought to have only sued his landlord.

21. If the respondent owed a debt to the appellant (which the appellant has never said), that could only have arisen out from a contractual relationship between them. But, as the appellant also believes that the respondent lacked the requisite locus standi to sue it, I hold the view that the respondent cannot have been indebted to the appellant, in principle.

22. From the evidence on record, the trial court was right to hold that the appellant had no justification for disconnecting electricity from the respondent’s residence. I so hold because the appellant failed to adduce any evidence to show that the respondent was indebted to it. If there had been a disputed debt, the Commission could have had jurisdiction. In conclusion, the trial court had jurisdiction to hear and determine the case.

Exemplary Damages

23. In the case of Godfrey Julius Ndumba Mbogori & another v Nairobi City Council [2018] eKLR,the court set out the categories of cases in which exemplary damages may be awarded, as follows: -

“(i) in cases of oppressive, arbitrary or unconstitutional action by the servants of the Government;

(ii) cases in which the defendant’s conduct has been calculated to make a profit for himself which may well exceed the compensation payable to the plaintiff, and;

(iii) where exemplary damages are expressly authorized by statute.”

24. In my understanding, the categories cited in that case are not exclusive. Exemplary damages may be awarded when the court has determined that the defendant needs to be punished.

25. In the case of Abdul Hamid Ebrahim Ahmed v Municipal Council of Mombasa HCCC No. 290 of 2000, the Court explained that: -

“The reason why exemplary damages are awarded mainly against the government or bodies exercising functions of a governmental character is because the servants of the government are also servants of the people and the use of their power must always be subordinate to their duty of service.”

26. In that case, exemplary damages were awarded because the actions of the defendant were not only high-handed but also malicious and spiteful. The court held that the plaintiff’s feelings were injured, and also that he had been humiliated.

27. In my considered view, the actions of the appellant were high-handed. Secondly, they caused humiliation to the respondent. Being a body which has monopoly in the country, it is indeed deemed that the appellant’s actions were of a governmental character.

28. In the results, the trial court cannot be faulted for granting exemplary damages against the appellant. I therefore find no merit in the appeal. The same is dismissed, with costs to the respondent.

DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 2ND DAY OF MARCH 2022.

FRED A. OCHIENG

JUDGE