[2024] KEET 394 (KLR)

Kilimo Hotel v Kenya Power and Lighting Company (Tribunal Appeal E021 of 2023) [2024] KEET 394 (KLR) (29 February 2024) (Ruling)

Neutral citation: [2024] KEET 394 (KLR)

Republic of Kenya

In the Energy & Petroleum Tribunal

Tribunal Appeal E021 of 2023

Kioko Kilukumi, Chair, D.K Mwirigi, Vice Chair, B.H Wasioya & F.S Ibrahim, Members

February 29, 2024

Between

Kilimo Hotel

Appellant

and

Kenya Power and Lighting Company

Respondent

Ruling

1. The Appellant herein instituted this suit through a memorandum dated 21st of November 2023. The Appellant is a limited liability company engaged in the guest house business. It brought its claim against the Respondent, a licensed electricity supply company.

Background 2. The dispute before the court concerns averments by the Appellant against the Respondenttouching on electricity bill from the Respondent. The Appellant, supplied with electricity through meter number 15101546, states that it was given a bill of KShs 286,175/= on the 19th of March 2021 and another bill of KShs. 1,747,284 on the 22nd March 2021.

3. The Appellant states that it made several inquiries to Respondent as to why the bill changed fromKShs. 286,175/= to KShs. 1,747,284. It states that despite making the inquiries, it was never given any explanation. In addition, even though it disputed the bill demanding an explanation, the Respondent disconnected it from power which grounded its operations.

4. The Appellant states that it had no choice but to pay as it was arm-twisted since it needed power.It states that it filed the dispute at the Energy and Petroleum Regulatory Authority but the authority did not address their dispute forcing it to file its case before this Tribunal.

5. In its Response, Respondent states that it wrote to the Appellant where it explained how theRespondent arrived at the bill. It also claimed that the dispute before the Tribunal had already been determined as the parties had entered consent in court. It also states that the Appellant had visited its premises, and the bill was explained to its representative.

6. The Respondent states that the matter came up in court on the 22nd of September 2023 whereparties recorded a consent before Honorable K. Bidali. It states that the court recorded the matter as settled and proceeded to have the matter marked as settled.

Appellants Submissions 7. The Appellant addressed this Tribunal on two issues. This is on the backdated electricity bills andwhether the disconnection of power complied with Section 160 of the Energy Act, 2019. On the first issue, they relied on the case of Alan E. Donovan v Kenya Power & Lighting Company [2021] eKLR. They argue that the Respondent was responsible for ensuring that the bills issued were up to date and did not have any irregularities.

8. The Appellant referred the Tribunal to the Respondent’s letter which explained the bills. In thesaid letter they state that the letter did not refer to meter readings and could not demonstrate actual and verifiable bills.

9. On its submissions on the adjusted bills, the Appellant submits that the Respondent did not followthe procedure provided under Section 160 of the Energy Act, 2019. It states that on payment of the bill, it had been arm-twisted into payment as it had to pay to obtain the service.

Respondent’s Submissions 10. The Respondent herein submitted on the issue of res judicata. Relying on Section 7 of the Civil Procedure Act, it argues that the appeal before the Tribunal ought to be dismissed as the case had already been determined in Naivasha CMCC No E390 of 2021, Kilimo Hotel vs. KPLC. It relied on the case of John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR and stated that it had raised the plea of res judicata in its response dated 28th December 2023.

11. The Respondent argues that the Appellant did not disclose to the Tribunal that the case had beendetermined in Naivasha CMCC No. E390 of 2021, Kilimo Hotel vs. KPLC. Due to the nondisclosure, it argues that it came before this Tribunal with unclean hands. As such the Tribunal ought not to entertain the appeal but dismiss it.

Issues For Determination 12. The parties herein have raised valid arguments concerning the disputed bill issued by the Respondent. Based on the arguments brought forth by the parties, the issues for determination before this Tribunal area.Whether the Appeal is a Res judicatab.Whether the bills issued by the Respondent are valid

(a) Whether the Appeal is a Res judicata 13. Despite the Respondent herein raising res judicata in this appeal, the Appellant hereincompletely ignored this issue and never addressed it in its submissions. It is clear from copies of pleadings and correspondences from the Appellant’s advocates that the parties herein had taken the same dispute before the Naivasha Chief Magistrates Court in Naivasha CMCC No. E390 of 2021.

14. The substantive law on Res Judicata is found in Section 7 of the Civil Procedure Act Cap 21 which provides that:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”

13. The doctrine is also defined in the Black’s Law Dictionary 10th Edition defines as“An issue that has been settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”

13. The effect of the doctrine is that a person may not commence more than one action in respect ofthe same or a substantially similar cause of action and the Court must attempt to resolve multiple actions involving a party and determine all matters in dispute in an action to avoid multiplicity of actions. Based on this, it means that if the court determines the issue of the bills, which is the issue in this Tribunal, then the Tribunal cannot determine such a dispute as the dispute has already been determined.

14. The Respondent herein claims that the dispute between it and the appellant was alreadydetermined and that parties filed a consent in court and had the matter settled in court. However, the Respondent herein failed in proving the existence of a determination as it did not file any consent or court proceedings to show the settlement. As such the Tribunal cannot ascertain whether there was a settlement or not as such, it cannot make a determination on the issue and as such the Respondent’s argument fails. For a party to rely on res judicata, they must show that the suit was heard and determined. The Respondents herein failed to do so.

(b) Whether the bills issued by the Respondent are valid 18. The Respondent herein wrote a letter to the Appellant on the 16th of June 2021. In the saidletter, the Respondent referred to correct meter readings. Between the 23rd of February 2018 and the 8th of March 2021, it stated that the correct meter readings were 151,089 but the charged one was 63,642.

19. As per the letter, it can be deduced that the 63,642 units were estimated between 23rd ofFebruary 2018 and 8th of March 2021. During this three year period the Respondent was only giving estimates and upon checking the meter readings after, it established that there was unpaid consumption.

20. The Appellant argues that no meter readings were indicated but the letter of 16th June 2021 shows meter readings. These are readings they obtained from the Appellant’s meter. The Appellant did not challenge whether those meter readings in the said letter were correct or not.

21. It is a common practice, which this Tribunal can take judicial notice of, that the Respondentusually uses estimates in billing when its meter readers fail to take actual readings from the meters. Section 154 of the Energy Act, 2019 speaks of the metering of electricity supply to consumers. The reading from the meter is what is used to charge electricity consumed. The provision does not stipulate that the same must be done every month and as such the Respondents usually issue backdated bills to consumers upon ascertaining the readings on the meter.

22. Having established the correct meter readings, the Respondent herein established that electricalenergy was consumed but not billed. This is what led to the bill for KShs. 1,747,248. Therefore, we find that the bill for KShs. 1,747,248 was justified as per the amount of electricity consumed.

23. However, we consider this practice to be harmful to consumer rights. The Respondent shouldensure that it does all it can to get the accurate meter readings.

Disposition 24. Having considered this appeal, the evidence and the arguments and having given due consideration to all the materials on record, the Tribunal makes the following determination.i.The bill issued by the Respondent of KShs. 1,747,248 was justifiable.ii.That there shall be no orders as to cost

DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF FEBRUARY 2024. ………………………..MR. KIOKO KILUKUMI, SCCHAIRPERSON………………………..MS. DORIS KINYA MWIRIGIVICE CHAIRPERSON……………………………..ENG. BUGE HATIBU WASIOYA MEMBER………………………….MR. FEISAL SHARIFF IBRAHIMMEMBERSIGNED BY: KIOKO KILUKUMITHE JUDICIARY OF KENYA.ENERGY AND PETROLEUM TRIBUNALENERGY AND PETROLEUM TRIBUNAL DATE: 2024-03-04 10:13:12+03