[2017] KEHC 1598 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CIVIL APPEAL NO. 93 OF 2016

KENYA POWER & LIGHTING CO. LTD............APPELLANT/RESPONDENT

VERSUS

SAMWEL MANDERE OGETO..............................RESPONDENT/APPLICANT

(An appeal from the judgment and decree of Hon. S.K. ONJORO

(SeniorResident Magistrate) dated and delivered on the 4th day

ofNovember, 2016 in the Original KISII CMCC No. 627 of 2016. )

RULING

1. In a ruling delivered by Hon. S.K. Onjoro on 25th November 2016 in Kisii CMCC 627 of 2016, the lower court dismissed the appellant’s preliminary objection seeking to dismiss the respondent’s suit before the lower court for want of jurisdiction.

2. Aggrieved by the trial court’s said ruling, the appellant filed the instant appeal before this court on 9th December 2016 which appeal is, todate, still pending before this court as no record of appeal has todate been filed so as to enable the same to be listed for directions or hearing.

3. On 27th March 2017, the respondent/applicant herein filed an application under Order 40 Rules 1 and 2 of the Civil Procedure Rules,Section 1A and 1B, 3, 3A, 63 (c and e) of the Civil Procedure Rules seeking inter alia, orders of mandatory injunction compelling the appellant/respondent to reconnect electricity to meter account Numbers04220783239, 14251318839and14251318748 (hereinafter “the suit premises”) to the applicant’s premises situate at Nyanchewa Block 1/599 and Nyanchwa Block 1 /564 respectively.

4. The application is supported by the affidavit of Samuel Mandere Ogeto, the applicant herein, sworn on 7th March 2017 in which he deponed that he is the holder of the said meter numbers on the suit premises which were pre-paid and did not have any outstanding bill arrears whatsoever as at 1st November 2016. He attached copies of safaricom statements which were marked as SMO1, a, b and c to attest to the claim that he had no outstanding bills to pay. He avers that despite his clean record with the respondent, on 1st November 2016, the respondent without any justification disconnected electricity from the said meter numbers and that power has not been restored to the suit premises to-date.

5. He contends that the suit premises are rental premises for commercial and residential purposes and that since the disconnection of electricity, all the tenants have vacated the premises thereby causing him untold losses in terms business as he has since been unable to service a loan that he had secured to put up buildings on the suit premises. He attached a copy of loan award letter from Chase Bank which was marked SMO9.

6. It is the applicant’s case that his attempts to get similar orders of mandatory injunction before the lower court were frustrated by the respondent herein when he chose to file a preliminary objection and later on the instant appeal after which it (respondent) obtained orders of stay of proceedings before the lower court thereby leaving the applicant with no option but to file the instant application before this court.

7. The respondent opposed the application through the grounds of opposition filed on 22nd March 2017 in which it stated that the application is fatally defective, lacks merit and does not meet the conditions for granting of an order of injunction.

8. Parties then agreed to canvass the application by way of written submissions.

9. The applicant, who acted in person, submitted that the respondent disconnected electricity to his premises without any justifiable cause despite the fact that he had no outstanding bills thereby subjecting him to untold loss of business and threats of his property being auctioned by the financiers that had granted him a loan to put up the buildings on the suit premises.

10. He added that the respondent had been reluctant to set down the appeal herein for hearing thereby prolonging his woes indefinitely. He relied on the decision in the case of Robai Kadili Agufa & Another vs Kenya Power & Lighting Company [2015] eKLR.

11. M/s Wamaasa, Masese, Nyamwange& Co. Advocates for the respondent submitted that since the lower court had ordered for stay of proceedings before the lower pending the hearing and determination of the appeal, which order was not challenged by the applicant, this court did not have jurisdiction to entertain he instant application.

12. The respondent further argued that the instant application does not meet the conditions set for the grant of orders of injunction as he had not established the existence of a prima facie case in view of the fact that he had not filed a cross-appeal.

13. The respondent maintained that the appeal herein challenges the lower court’s decision on its jurisdiction to determine the dispute which it (respondent) insists falls within the purview of Energy Regulatory Commission in line with section 61 (3) of the Energy Act No. 12 of 2006.

14. He relied on the decisions in Royal Reserve Management Company vs KPLC MSA HCCC NO. 12 of 2017 among other authorities.

15. I have considered the application, the affidavit in support thereof, the grounds of opposition and the parties’ respective submissions together with the authorities cited.

16. The application is expressed to have been brought under Order 40 Rules 1 and 2 of the Civil Procedure which stipulates as follows:

“[Order 40. Rule 1] Cases in which temporary injunction may be granted.

1. Where in any suit it is proved by affidavit or otherwise—

(a) that any property in dispute in a suit is in danger of being wasted, damaged, oralienated by any party to the suit, or wrongfully sold in execution of a decree; or

(b) that the defendant threatens or intends to remove or dispose of his property incircumstances affording reasonable probability that the plaintiff will or may be obstructedor delayed in the execution of any decree that may be passed against the defendant in the

suit, the court may by order grant a temporary injunction to restrain such act, or make suchother order for the purpose of staying and preventing the wasting, damaging, alienation,sale, removal, or disposition of the property as the court thinks fit until the disposal of thesuit or until further orders.”

“[Order 40, rule 2. ] Injunction to restrain breach of contract or other injury.

2. (1) In any suit for restraining the defendant from committing a breach of contract orother injury of any kind, whether compensation is claimed in the suit or not, the plaintiffmay, at any time after the commencement of the suit, and either before or after judgment,apply to the court for a temporary injunction to restrain the defendant from committing

the breach of contract or injury complained of, or any injury of a like kind arising out ofthe same contract or relating to the same property or right.

(2) The court may by order grant such injunction on such terms as to an inquiry as todamages, the duration of the injunction, keeping an account, giving security or otherwise,as the court deems fit.

17. My take is that since this matter is on appeal, the most appropriate order under which the application should have been brought is Order 42 Rule 6 (6) of the Civil Procedure rules thus:

“[Order 42, rule 6. ] Stay in case of appeal.

(6) Notwithstanding anything contained in subrule (1) of this rule the High Court shallhave power in the exercise of its appellate jurisdiction to grant a temporary injunction onsuch terms as it thinks just provided the procedure for instituting an appeal from asubordinate court or tribunal has been complied with.”

18. I find that under Article 159 (2) (d) of the Constitution, this court is mandated to consider the merits of this application and deliver substantive justice to the parties irrespective of the procedural technicality of not citing the appropriate provision of the law.In any event, Sections 3, 3A and 63 (e) of the Civil Procedure Act, under which the application was also expressed to have been filed, also grants this court a wide discretion to grant interlocutory orders as may appear to be just and convenient.

19. The orders sought in this application is an injunction to restore or reconnect electricity to the suit premises. Even though it is not indicated for how long the said order is intended to last, by virtue of the fact that the said application has been made in this appeal, then it can be presumed that the said order for restoration of electricity is to be made pending the hearing and determination of the appeal.

20. A mandatory injunction is different from a prohibitory injunction in the sense that while an in prohibitory injunction the applicant must, as was stated in the celebrated case of Giella vs Cassman Brown & Co. Ltd (1973) EA 358, establish the existence of a prima facie case with high chances of success, and that he will suffer irreparable loss/damage which cannot be adequately compensated by an award of damages if the injunction is not granted, and further that the balance of convenience tilts in his favor, an applicant in a mandatory injunction must, in addition, establish the existence of special circumstances. Furthermore, an applicant for mandatory injunction must prove his case on a standard higher than the standard in prohibitory injunctions.

21. In the case of Kenya Breweries Ltd & Another vs Washington O. Okeya [2002] eKLR, the Court of Appeal stated as follows on mandatory injunctions.

“A mandatory injunction ought not to be granted on an interlocutory application in the absence or special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction, the court had to feel a higher degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”

22. In the case of Nation Media Group & 2 Others vs John HarunMwau [2014] eKLR, the court of appeal said:

“It is trite law that for an interlocutory mandatory injunction to issue, an applicant must demonstrate existence of special circumstances… A different standard higher than that in prohibitory injunction is required before an interlocutory mandatory injunction is granted. Besides existence of exceptional and special circumstances must be demonstrate as we have stated a temporary injunction can only be granted in exceptional and in the clearest of cases.”

23. The above cited cases lay down the principles of law to be considered in an application for mandatory injunction and the condition that stands out is that the applicant must establish the existence of special and exceptional circumstances that warrant the granting of orders of mandatory injunction.

24. In the instant case, I find that the applicant has demonstrated to the satisfaction of this court, that there are special and exceptional circumstances that warrant the granting of the orders of mandatory injunction sought. The applicant has, through his affidavit in support of the application together with the annextures, demonstrated that he had fulfilled his obligations as the respondent’s customer by paying all his electricity bills in full only for his electricity supply to be disconnectedin November 2016 without any explanation or justification and that electricity supply had not been restored to the suit premises as at the time the application was heard. The applicant has further demonstrated that the suit premises were for commercial purposes and that he had secured a bank loan to construct them which loan is in arrears and continues to accrue interest thereby exposing him to the imminent danger of his suit property being auctioned.

25. On its part, the respondent did not file any replying affidavit in court in order to shed light on the circumstances under which it disconnected power supply to the suit premises so as to enable this court determine whether its action was justified or not. All that the respondent filed were grounds of opposition in which it alleged that the application lacked merit and was defective without expounding or highlighting the said defects. In sum therefore, the allegations made by the applicant in his affidavit have not been controverted or denied by the respondent.

26. This court takes judicial notice of the fact that the respondent is a government owned public company that is the sole supplier/distributor of electricity in this country. The respondent therefore enjoys the monopoly of being the only supplier of electricity and owes a duty to Kenyans not to use its monopoly arbitrarily or in an oppressive manner as has been evident in the instant case. While the respondent would have been justified to disconnect power if, for example, the applicant defaulted in settling his power bills or acted contrary to the agreed terms and conditions of power supply, such scenarios have not been proved by the respondent and this court finds that short of the requisite explanations, the respondent’s action of disconnecting power to the suit premises was arbitrary, oppressive and capricious. Upon settling all his bills, the applicant had legitimate expectation that he would be supplied with power. Needless to say, the losses that any business or household would incur in a situation of unexplained and unjustified power disconnection cannot be gain said.It would appear that the business mantra which states that “customer is the king” does not ring a bell in the respondent’s circles. This court is quite baffled that the respondent would choose to treat the applicant, who is their own customer, in such a shabby and unfriendly manner.

27. In conclusion, having found that the instant application meets the threshold of special circumstances for the grant of orders of mandatory injunction, I allow the application in the following terms:

a) An interim mandatory injunction is hereby issued compelling the respondent to restore electricity power supply to the applicant’s respective premises under supply meter account numbers 04220783239, 14251318839 and 14251318748 forthwith.

b) The applicant do pay a prepaid amount of Kshs. 5000/= on each meter account number which money shall be utilized to pay for power consumption until it is exhausted, and thereafter, the applicant shall continue to pay power bills for power consumption after reconnection, as may be necessary, until the pending appeal is heard and determined.

c) The respondent do file the Record of Appeal within 30 days from the date hereof and thereafter, fix the appeal for directions within 30 days from the date of filing the Record of Appeal.

d) The costs of this application shall abide the outcome of the appeal.

Dated, signed and delivered in open court this 5th day of December, 2017

HON. W. A. OKWANY

JUDGE

In the presence of:

The Appellant in person

N/Afor the Respondent

Omwoyo court clerk