https://new.kenyalaw.org/akn/ke/judgment/keet/2026/5

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: ENERGY AND PETROLEUM TRIBUNAL CASE NUMBER: EPA/E050/2025 KENYA POWER & LIGHTING COMPANY LIMITED VS SHADRACK SHARU MUYESU AND KETRACO AND 2 OTHERS JUDGMENT # A. BACKGROUND 1. This Appeal arises from the determination of the Energy and Petroleum RegulatoryAuthority (“EPRA” or “the Authority”) delivered on 31st October 2025 in Complaint Reference EPRA/PEACP/CP/4/64571043/2025/EW/pm, wherein the Kenya Power and Lighting Company PLC (“the Appellant” or “KPLC”), challenges the decision on grounds of procedural and substantive errors. 2. Mr. Shadrack S. Muyesu (“the 1st Respondent” or “Cross-Appellant”), lodged a complaintconcerning prolonged and unexplained power outages in Lodwar town and its environs from September 2023 onwards. 3. The High Court at Lodwar, in Petition No. E005 of 2024, directed EPRA to hear anddetermine the complaint within sixty days, considering “every dispute capable of resolution” under the Energy Act. 4. In its determination, the Authority found the Appellant culpable for failing to providereliable supply and notices but declined to award damages, citing insufficient proof. Both parties have appealed: the Appellant by way of Memorandum of Appeal, and the 1st Respondent by way of Cross‑Appeal. # B. APPELLANTS CASE 1. KPLC contends that the Authority’s determination was flawed in law, principle, and fact,and seeks to have it set aside or substituted on the grounds set out in paragraphs 6 to 17 herebelow. 2. The Authority contravened the rule that parties are bound by their pleadings byeffectively rewriting both the Complainant’s Complaint and the Ruling of the High Court in Lodwar HCCHR Pet No. E005 of 2025. 3. The Authority failed to consider KPLC’s Supplementary Affidavit dated 24th October 2025 and filed on 28th October 2025, thereby violating the Appellant’s right to be heard. 4. The Authority misdirected itself in framing the issues for determination, leading to anerroneous outcome. 5. The Authority improperly relied on inadmissible third-party statements and unverifiedsocial media posts to conclude that KPLC failed to provide reliable and sustainable power supply. 6. The Authority erred by shifting the burden of proof to the Appellant, contrary to theprinciple that he who alleges must prove. 7. The Authority lacked jurisdiction to determine the complaint filed on 1st November2023, as its mandate had extinguished by effluxion of time. 8. The Authority wrongly restricted its consideration to the 2023 complaint, therebyrewriting the scope of the dispute contrary to the High Court’s directive. 9. In so doing, the Authority misinterpreted the Lodwar High Court’s ruling on disputesunder the Energy Act, 2019. 10. The Authority contradicted its own ruling of 16th April 2025, which had limited itsjurisdiction to the 2023 complaint, yet it later considered the Petition and further affidavit filed on 29th September 2025. 11. The Authority erred in failing to hold that the 1st Respondent had no cause of actionagainst KPLC due to lack of privity of contract. 12. The conduct of proceedings and the determination demonstrated bias against theAppellant and an abdication of responsibility by other energy sector entities, including the Authority itself. 13. The determination and orders issued on 31st October 2025 were rendered per incuriam. 14. Consequently, KPLC prays for orders that: 15. The appeal be allowed. 16. The Tribunal may declare as per incuriam and strike off the Determination of theAuthority delivered on the 31st October 2025. 17. The Judgment delivered on the 31st October 2025 in EPRA/PEACP/CP/4/702/2025/CC/pmbe substituted with a Judgment striking out the 1st Respondent’s Complaint lodged on 1st November 2023. 18. The Judgment delivered on the 31st October 2025 in EPRA/PEACP/CP/4/702/2025/CC/pmbe substituted with a judgment dismissing the 1st Respondent’s Dispute. 19. The Authority may conduct a retrial of the dispute upon proper framing of the issues inline with the Ruling of the High Court in Lodwar HCCHR Pet No. E005 of 2024 dated 7th March 2025. 20. Costs of the appeal be met by the 1st Respondent. # C. 1ST RESPONDENT’S CROSS-APPEAL 1. The 1st Respondent/Cross-Appellant appeals against the determination of the Authoritybased on the grounds set out in paragraphs 20 to 30 herebelow. 2. The Authority erred in law and in fact by limiting itself to the complaint letter dated 1stNovember 2023 in violation of a clear directive from the High Court at Lodwar issued at paragraphs 10 and 11 of its Ruling dated 7/3/2025 making the entire content of the Petition dated 18/11/2024 in issue. 3. The Authority erred in law and in fact by confining itself to the complaint letter dated1/11/2023 in spite of its own directions issued on 24/9/2025 allowing the Cross-Appellant to supplement his complaint by introducing the Petition dated 18/11/2024 together with any other documents. 4. The Authority erred in law and in fact by disregarding the Petition dated 18/11/2024 andthereby finding that the Cross-Appellant had not pleaded special damages. 5. The Authority erred in law and in fact by omitting to consider the Cross-AppellantSupporting Affidavit dated 18/11/2024, the annexures attached thereunto as well as the receipts and additional evidences annexed to his Further Affidavit dated 29/9/2025 and thereby finding that Cross-Appellant had failed to prove damages. 6. The Authority erred in law and in fact by issuing a self-contradicting decision when onone hand, it found that the Appellant failed to provide quality and reliable electrical supply during the period in issue and on the other, that the Cross-Appellant had not provided adequate evidence to prove quantum or causation. 7. Having settled on the Appellant’s culpability, the Authority erred in law and in fact whenit failed provide any remedies. 8. The Authority erred in law and in fact by placing undue regard on proceduraltechnicalities to find that the Cross-Appellant was not formally authorized to bring a suit in the public interest in spite of the clear provisions of article 22 (2) , 22 (3b and d) of the Constitution of Kenya 2010. 9. The Authority erred in law and in fact by failing to consider the impracticality ofobtaining formal consent vide a memorandum of authorization from the numerous residents of Lodwar prior to filing a suit on their behalf. 10. The Authority erred in fact by finding that the complaint was primarily in the publicinterest in spite of the clear wording of the 1st Paragraph of the Complaint Letter dated 15/9/2023 and the subject of the Petition dated 18/11/2024. 11. In any event, having determined that the complaint was in the public interest, and thatthe Appellant was liable for failing to provide quality and reliable electrical supply during the period in issue or issuing notices, the Authority erred in law by failing to apportion general damages in favor of the residents of Lodwar or issue any other remedies for the damages they had suffered. 12. The Authority erred in law and in fact by omitting to find that loss and damaged ipsofacto followed the Appellant’s omissions in which event, general damages could be awarded per se. 13. The Cross-Appellant prays for orders that:(a) This Cross-Appeal is hereby allowed. 14. A declaration be and is hereby issued that the Authority erred in law and in fact byconfining itself to the complaint letter dated 1/11/2023 in spite of its own directions issued on 24/9/2025 allowing the Cross-Appellant to supplement his complaint by introducing the Petition dated 18/11/2024 together with any other documents and in spite of the ruling of the High Court at Lodwar making the entire content of the Petition dated 18/11/2024 in issue. 15. To the extent that the Appellant was held liable for failing to provide quality and reliableelectrical supply and failing to issue power interruption notices, the Determination of the Honorable Authority is hereby upheld with special, general and exemplary damages awarded as prayed for in the Petition dated 18/11/2024 and paragraph 11 of the Petitioner’s Further Affidavit dated 29/9/2025. # D. 2ND RESPONDENT’S RESPONSE 1. The 2nd Respondent avers that it is not responsible for issuing customer powerinterruption notices since it is not the licensed entity for electricity distribution or supply to end users. 2. The 2nd Respondent argues that its role is limited to transmission of bulk power thoughthe high-voltage network and was not served with the Plaintiff's letter dated 15th September, 2023. 3. Additionally, it is the 2nd Respondent case that the allegations touching on inadequacyor timeliness of interruption notices properly fall within the mandate of the 1st Respondent. 4. The 2nd Respondent maintains that it executes government approved electricitytransmission projects guided by national policy and technical feasibility and not by regional, ethnic or political considerations. # E. ANALYSIS AND DETERMINATION 36. Having carefully considered the Appellant’s Memorandum of Appeal, the 1st Respondent’s Cross‑Appeal, the pleadings, affidavits, annexures, and submissions of the parties, the Tribunal identifies the following issues for determination: 1. Whether the Authority had jurisdiction to determine the complaint, and whether it erredby limiting itself to the complaint letter dated 1/11/2023. 2. Whether KPLC and the Authority are culpable for the prolonged poor quality andunreliability of electricity supply in Lodwar town and its environs. 3. Whether EPRA erred in finding liability but denying remedies. 4. Whether the 1st Respondent was properly authorized to bring proceedings in the publicinterest under Article 22 of the Constitution. **(A) Whether the Authority had jurisdiction to determine the complaint, and whether it erred by limiting itself to the complaint letter dated 1/11/2023.** 1. The High Court at Lodwar (Petition No. E005 of 2024) expressly directed EPRA toconsider the entire Petition dated 18/11/2024. Further, in its Ruling dated and delivered on 4th September 2025 in Appeal No E009 of 2025 involving the same parties and regarding the same matter, this Tribunal stated thus: 1. *Following careful analysis of the pleadings and documents on record, it is trite thatthis appeal originates from complaints of unreliability and poor quality of electricity supply in Lodwar town and the larger Turkana County, as evidenced in the Respondent’s letter to the Appellant dated 15th September 2023* 2. *Arising from the Appellant’s contemptuous snubbing of the Respondent’s complaint,the latter approached the High Court in Lodwar in a petition dated 18th November 2024.* 3. *The Appellant then filed a preliminary objection, citing lack of jurisdiction of theHigh Court to adjudicate over the matter, pursuant to provisions in the Energy Act, 2019 and the Energy (Complaints and Disputes Resolution) Regulations 2012 that prescribe mechanisms for addressing such matters before resorting to the court.* 4. *After the ruling of the High Court referring the matter to EPRA as the sectorregulator to determine the matter within sixty days from the date of the ruling, the Appellant filed another preliminary objection seeking to bar the Authority from adjudicating over the matter, which objection was dismissed by the Authority on 16th April 2025, occasioning this Appeal.* 5. *The Respondent’s complaint would have been addressed in good time if theAppellant:* 6. *was operating in compliance with Section 141 of the Energy Act, 2019,* 7. *had an effective complaints handling procedure as required by Section 147 (2) (e) ofthe Energy Act, 2019 and the Energy (Complaints and Disputes Resolution) Regulations, 2012.* 8. *The Tribunal is not persuaded by the Appellant’s argument that the determination ofthe Authority delivered on 16th April 2025 was per incuriam, instead we take note that the Appellant is engaged in abuse of the court processes through frivolous preliminary objections. The Authority had no option but to comply with an order issued by the High Court.* 2. The Authority’s jurisdiction under Section 25 of the Energy Act, 2019 extends todisputes on electricity supply. The directives of the High Court and this Tribunal revived and extended EPRA’s mandate. The Appellant’s contention that jurisdiction had lapsed is without merit and is hereby dismissed. 3. It is also the Tribunal’s finding that EPRA erred by restriction itself to the 2023 complaint letter was a misdirection. **(B) Whether KPLC and the Authority are culpable for the prolonged poor quality and unreliability of electricity supply in Lodwar town and its environs.** 1. The Authority correctly found KPLC culpable for failing to provide reliable electricitysupply in Lodwar town and its environs as well as not giving notices of supply interruptions. This finding is supported by evidence in correspondence exchanged between parties in this dispute, as well as information in mainstream and social media. 2. In its determination, EPRA states that: 1. *The Plaintiff's in his complaint lodged with the Authority and dated 1st November,2023 claims that the 1st Respondent failed to issue notices of power interruption prior to the frequent power outages which he claims were prolonged and affected Lodwar town and its environs.* 2. *It is the Plaintiff's case that the said power interruptions occurred during the twomonths leading up to his complaint namely the month of September and October, 2023.* 3. *The Plaintiff further avers that the 1st Respondent failed to explain the cause of theinterruptions and provide specific timelines within which the frequent power outages would be resolved.* 4. *The 1st Respondent's 'Customer Charter' which is readily available on their website,outlines the requirement for issuance of a notice and the duration of each interruption in hours at page 6 under the title 'supply interruption'. The charter goes on to state that a customer ought to report power interruption through their communication channels.* 5. *The Plaintiff has tendered evidence that he reported the power interruptionsexperienced in Lodwar town vide a letter dated 15th September, 2023 which the 1st Respondent denies ever receiving the said letter as indicated in paragraph 13 of the Replying Affidavit dated 7th April, 2024.* 6. *A closer look at the Plaintiff's letter dated 15th September, 2023 reveals that theletter was duly stamped and acknowledged by the 1st Respondent. There is no evidence on record to show that the 1st Respondent responded to the Plaintiff's letter.* 7. *The undisputed facts are that Lodwar is served by an off-grid . . . . station and hasexperienced frequent, prolonged interruptions over the material period. Neither party has filed outage logs, event reports, or a reliability dataset. Further, the 1st Respondent has not stated whether the interruptions were for power rationing or system maintenance. On the other hand, the Authority notes that the Plaintiff's annexures are largely media links and general reportage.* 8. *In the absence of engineering records from either side, the Authority cannot assign aprecise technical cause mix nor compute performance indices. However, Section 141 of the Energy Act, Cap 314 obliges a licensee grid or off-grid to ensure continuity and quality of supply, to plan and maintain adequate facilities, to keep proper records, and to provide timely information to consumers about service status and remedial actions.* *..............* *76. The Authority has considered the evidence tendered by the Plaintiff, the 1st* *Respondent and the 2nd Respondent and hereby makes the following Determination;* *a) That the 1st Respondent failed to provide quality and reliable electricity supply and equally failed to issue power interruption notices to residents of Lodwar town and its environs”.* *c) That the Plaintiff’s prayers for general damages, exemplary damages and specific damages are hereby dismissed for lack of proof.* 1. The orders in paragraph 76 of the determination by the Authority were made despitevery clear provisions in the Energy Act, 2019, which were violated by both the Appellant and the Authority. Sections 141 and 166 of the Act state thus:- # *141. Reliability and quality of supply and quality of service* *The licensee shall collect, analyze and maintain such data, information and statistics relating to his undertaking to enable him monitor and report to the Authority on the reliability and quality of supply as well as quality of service, as shall be prescribed in regulations made under this Act.* ***166. Penalties and compensation for failure and defects in electricity supply*** *(1) Subject to any agreement which may be entered into between a licensee and a consumer as provided for under this Act, whenever the licensee defaults in supplying electrical energy to any consumer, the licensee shall be liable in respect of each default to a penalty as prescribed by regulations.* 1. *The licensee shall be liable to pay appropriate compensation to a person if due tofailure, poor quality or irregularity of electricity supply, the person incurs damage to his or her property, financial loss, loss of life due to negligence or avoidable default by the licensee.* 2. *For the avoidance of doubt, the licensee shall not be liable to pay compensationunder subsection (2) if the failure, poor quality or irregularity of electricity supply was caused by third party interference to the licensee's electricity supply lines or inevitable accident or force majeure was so slight as not to materially affect the quality or value of the supply.* 3. *The Cabinet Secretary shall make regulations to give effect to this section within sixmonths of the coming into force of this Act.* 4. By dint of Section 141, KPLC was required to (but did not) collect, analyze and maintaindata, information and statistics relating to its undertakings in Lodwar tow and its environs to enable it monitor and report to the Authority on the reliability and quality of supply as well as quality of service. The sector regulator, EPRA, did nothing regarding KPLC’s default, leading to the prolonged poor quality and unreliability of electricity supply in Lodwar town and its environs. 5. Such violations on the part of the Appellant must not be condoned by the Tribunal. Asstated by PJO Otieno, J, in the case of Wekesa v Kenya Power and Lighting Company Ltd and another (Constitutional Petition 12 of 2021) [2023] KEHC 2900 (KLR) (27 March 2023): *46. When petitioner contests the bills levied by the 1st Respondent as exorbitant and unfounded; when that complaint is lodged in accordance with the law but it takes the 1st Respondent, now more than 12 months to respond to its statutory regulator; and when that regulator stands hamstrung without exercising its power under the Act, the law and the order it is intended to serve stands violated and threatened with continued violation. It takes the court, when moved as has been done here, to remind the transgressor that Kenya remains a democracy where the law reigns supreme. That must be the inevitable message to the Respondents that, all are subject to the law, and that a creature of the law, must be absolutely bound to comply with the dictates of the creator to the minutest of such dictates. The court finds that the 1st Respondent is by the provisions of Energy (Complaints and Dispute Resolution) Regulations, 2012 to establish a dispute resolution mechanism and to resolve all disputes under that mechanism expeditiously. It is clear to this court that the time it has taken the 1st Respondent to resolve the dispute, including the 40 days given by the court for that purpose, is only indicative that either the mechanism isn’t effective nor efficient or that the 1st Respondent trashes same with abandon. For the 2nd Respondent, it must not act toothless when the statute and the regulations affords to it very immense power for purposes of its regulatory mandate. In the context of this dispute, the 2nd Respondent ought to have invoked, in particular, its powers under sections 11(f) and (n) to compel the 1st Respondent to consider the dispute. In failing to do so, it has abdicated statutory duty and contributed to the violation of the law.* 1. The irresistible conclusion is that KPLC failed to provide reliable electricity supply to theresidents of Lodwar town and its environs, did not address complaints when raised and that EPRA abdicated its statutory duty and contributed to the violation of the law. **(C) Whether EPRA erred in finding liability but denying remedies.** 1. Having found liability, the Authority erred in declining remedies, aggravating itsabdication of statutory duty and violation of the law. General damages flow ipso facto from denial of reliable electricity. Special damages were pleaded and supported by receipts. 2. As alluded to in paragraph 31(c) hereinabove, reliefs sought include: (a) An order awarding the named 1st Respondent KShs. 3,000,000 as general damages for pain, suffering, as well as the inconvenience, time and other resources spent in trying to mitigate against the consequences of the acts and omissions of the Appellant and EPRA. (b) KShs. 100,000,000 in exemplary damages for violation of the rights of the residents of Lodwar town and its environs as shall be assessed by the court to be distributed to business owners within Lodwar town in a manner to be determined by the Court. 1. As alluded to in paragraph 37 hereinabove, the Appellant has engaged in continuingprosecution of this matter back and forth from the Authority, the High Court and this Tribunal since November 2023 to date. The Tribunal finds the KShs. 3,000,000 prayed for in respect of general damages excessive and instead awards KShs. 500,000. 2. The Tribunal awards special damages amounting to KShs 556,800, as pleaded in thePetition dated 18th November 2024 and supported by receipts annexed to the Further Affidavit dated 29th September 2025. 3. The prayer for KShs. 100,000,000 in exemplary damages to be distributed to businessowners within Lodwar town is declined for the reasons set out in paragraph 51 herebelow. **(D) Whether the 1st Respondent was properly authorized to bring proceedings in the public interest under Article 22 of the Constitution.** 51. On this issue, the Tribunal downs its tools, guided by the decision of the Supreme Court in the case of Abidha Nicholus vs. The Attorney General and Others, Petition No. E007 of 2023, where Mwilu; DCJ and VP, Wanjala, Njoki, Lenaola and Ouko SCJJ held that: *[119] Similarly, in respect of the Energy Act, Section 106 of the Act provides that appeals to the EPT from decisions by EPRA shall be in relation to issues relating to licensing while Section 25 generally grants jurisdiction to the EPT to hear and determine disputes and appeals in accordance with the Act or any other written law. Determination of allegations of constitutional violations cannot be such issues as to attract the Tribunal’s attention.* # DISPOSITION 52. For the reasons set out in the foregoing analysis, the Tribunal hereby ORDERS as follows: 1. The Appellant’s Appeal dated 31st October 2025 is dismissed in its entirety. 2. The 1st Respondent’s Cross‑Appeal dated 15th November 2025 is allowed. 3. A declaration is hereby issued that the Energy and Petroleum Regulatory Authority erredin law and fact by confining itself to the complaint letter dated 1st November 2023, contrary to the High Court’s directive and its own directions of 24th September 2025. 4. The Authority’s finding of liability against the Appellant for failing to provide reliableelectricity supply and notices is upheld. 5. The 1st Respondent is awarded special damages amounting to KShs. 556,800. 6. The 1st Respondent is awarded general damages amounting to KShs. 500,000. 7. Costs are awarded to the 1st Respondent. Dated and Delivered at Nairobi this 11th day of June 2026 ………………………………… Ms. Doris K 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 16:10:14 |