[2024] KEET 389 (KLR)

Mbobu v Kenya Power & Lighting Co. Ltd (Tribunal Appeal E009 of 2023) [2024] KEET 389 (KLR) (29 February 2024) (Ruling)

Neutral citation: [2024] KEET 389 (KLR)

Republic of Kenya

In the Energy & Petroleum Tribunal

Tribunal Appeal E009 of 2023

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

February 29, 2024

Between

Kyalo Mbobu

Appellant

and

Kenya Power & Lighting Co. Ltd

Respondent

Ruling

1. The Appellant herein instituted this appeal against the decision of the Energy and Petroleum Authority (EPRA) delivered on the 24th of October 2023 by CPA Cyprian M. Nyakundi in Dispute No. EPRA/ECP/CP/4/494/2022. In its appeal, it seeks to overturn the decision of the Authority which held that he was liable to pay a pending electricity bill for KShs. 421,400/-. The Respondent herein is a limited liability company licensed electricity supply company.

Background 2. The dispute before the court arose from a complaint filed at the Energy and Petroleum RegulatoryAuthority through a letter dated the 21st of November 2022. The Claimant, a joint owner of all that piece of land of Title Number Mavoko Town Block 3/29357, avers that on or about the 5th of October 2022 he received a text message from the Respondent stating that he had a bill of KShs. 457,217. 00 for his account Number 46455564.

3. The Claimant states that the bill came as a surprise as his average cost of electricity was betweenKShs. 2,500 and KShs. 3,500 per month. The Claimant asserts that he engaged the Respondent’s Machakos County offices who told him that his bill was power consumed but had not been billed between 2018 and 2022 as the Respondent’s premises had been inaccessible.

2. Apart from disputing the bill, the appellant also stated that the Respondent’s staff had trespassedinto his home and caused unwarranted damages by cutting down 47 mature Grevillea trees, damaging security cameras, fibre optic cable flowers and pots.

3. The Respondent states that the meter was installed on 26th June 2016 but between 17th ofOctober 2018 to 17th September 2022 they did not have access to the Appellant's premises to read the meter and as such the unbilled units accumulated to KShs. 457,217. They carried out visits to the premises between November 2022 and 18th January 2023 where they say that they were able to establish the true unbilled consumption.

4. On trespassing and cutting the Appellant’s trees, the Respondent stated that they were doingtrace maintenance and during the activity, they cut the 41 Grevillea trees on the Appellant’s land. The Respondent stated that they procedurally, using their standard rates, prepared the compensation form No. 90702 on 3rd December 2022. They offered to pay KShs. 32,130, which was rejected by the Appellant.

5. The Authority established that the plaintiff was liable to pay the bill of KShs. 421,400 as theplaintiff had consumed the electricity which was not billed. On the issue of trespass, the Authority found the Respondent liable for trespass as it had access to the land without consent as required under Section 180 of the Energy Act, 2019. It was also determined that it had cut trees without prior consent and the Respondent was liable.

6. The Appellant was not satisfied with the decision of the Authority hence this Appeal through amemorandum of appeal dated 2nd November 2023. In its appeal, it faults the Authority’s decision on its determination on payments of the KShs. 457,217 and that it did not correctly assess the damage it suffered to its land. The prayers it seeks in its appeal are:i.A declaration that the Respondent was estopped from claiming the alleged accumulated billbeing KShs. 457, 217ii.That the Respondent be found liable under the tort of negligence and trespass and that the Tribunal reviews the award under the two forms of tortiii.The Tribunal awards punitive and/or aggravated damages against the Respondentsiv.Costs of the Appealv.Any other order

Appellant’s Submissions 9. The Appellant in its submissions argues that because of global warming, the one-year delay in thesite visit to the land could not have shown the true effect of the damages. He also attributes negligence on the part of the Respondent for failing to undertake meter readings over a lengthy period. He argues that the Respondent cannot benefit from their omission.

10. The Appellant argues that the Authority did not take into recognition that the Respondent hadtaken a long period without taking meter readings and that it did not take any steps to complain about the challenge of getting access to the premises. As such, it is the Appellant’s submission that due to the Respondent’s negligence, it is precluded or estopped from claiming the accumulated bill.

11. The Appellant, relying on the case of Marsha Birya Dena versus Francis Kahindi (2021) argues that the site visit by EPRA could not lead to a true assessment of damages as it was conducted after a year. It argues that the site visit, one year after the incident, denied it its ability to assess the damage.

12. On the Appellant’s submission, He wants the Respondents stopped from claiming the bill as itscharter required it to read meters at least eight times a year. The respondent terms this as negligence and relies on the case of Chief Land Registrar & 4 others versus Nathan Tirop & 4 others. It states that the doctrine of laches applies herein and therefore the Respondent lost its claim.

13. The Appellant prays for review of the damages awarded by EPRA. It submits that KShs. 105,000 damages for trespassing is too low compared to the damage occasioned by the Respondent. Relying on several court cases, the Appellant submits that the proper award should be KShs, 10,000,000. The Appellant also submits that the destruction of trees on the land among other items was oppressive and as such they should have been punitive damages of KShs 5,500,000

14. The Appellant argues that it was denied the right to cross-examine the witness of theRespondent and as such it was denied the right to a fair trial. In addition, it argues that the determination that parties get an independent opinion of the trees that were cut was not conclusive. He submits that the court should have conducted an evaluation based on the evidence provided and made a conclusive decision instead of having parties jointly assess the damages.

Respondent’s Submission 15. The Respondent on its part argues that the argument on not visiting the premises for meterreading had no basis in law. In its submission, it argues that its failure to read the meter does not defeat its right to seek payment of the accumulated electricity bill.

16. The Respondent relied on Section 160 of the Energy Act, 2019 to argue that the Appellant had the responsibility to pay the bill for the units consumed. In its submissions, it argues that no omission warranted the damages that the Appellant seeks.

17. The Respondent submits that the damages given by the court to the Appellant were sufficient.On the issues of finality, it submits that EPRA had already required parties to assess the damages of the 47 trees and argues that the court is free to inspect a property at any time.

Analysis and Determination 18. Having analyzed the arguments submitted by both parties, this Tribunal finds the following as the issues to be determined in this Appeal.i.Whether the plaintiff is liable to pay the accumulated bill of KShs 457,217 ii. What damages are owed to the Appellant?

(i) Whether the plaintiff is liable to pay the accumulated bill of KShs 457,217 19. On the 24th of October 2023, EPRA made its determination and stated that the Appellant hereinwas required to pay for the accumulated unpaid bill of KShs 457,217. The reason that has been used for the accumulation is that the Respondent was unable to undertake meter readings. EPRA in its determination found that there had been no proof that the Respondent herein had provided to show that exhausted all available communications to contact the plaintiff.

20. During the trial and in this appeal, there has been no argument against the authenticity of thebill. The respondent has always argued against the bill on account of the Respondent’s omission to undertake meter readings. Consumption of power has also not been a disputed issue.

21. EPRA in its determination faulted the Respondent for not being vigilant in getting access to thepremises for purposes of meter readings. In its wisdom, it determined that there was consumption which had to be paid and in balancing the rights of the Appellant as a consumer and the Respondent as a supplier, it ordered the plaintiff to pay the bill in equal instalments of 36 months.

22. This Tribunal agrees with EPRA's determination that the respondent herein did not exhaust allmeans to obtain access to the premises and get the meter readings as it is required in their charter. Although the Respondent herein could bill for what was consumed and not billed, this Tribunal holds that its practice to backdate and compile a bill for 36 months is not fair and it goes against the rights of a consumer. Justice Makau in the case of Alan E. Donovan v Kenya Power & Lighting Company [2021] eKLR stated that such acts contravened the provision of Article 46 of the Constitution.

23. Justice Makau added that even when KPLC can justify the bill, such a bill goes against theNational values of good governance infrastructure in Article 10 of the Constitution. In the court’s view, it prohibits one from back billing for 12 calendar months proceeding, as this would be contrary to the National Values, Principles of Good Governance, Integrity, Transparency and Accountability and Sustainable Development.

24. Justice Makau stated that Article 10 of the Constitution clearly and in no ambiguous terms lays down the values of Governance, which binds all State Organs, Public Officers and all persons whenever any of them apply the Constitution or any other law. He stated that the principle would apply to a dominant market player like KPLC whose shareholding substantially comprises the State.

25. The Appellant herein has a right to goods and services of reasonable quality and to informationnecessary for him to gain full benefit from goods and services that had been and was being contravened”. Unwarranted backdated billing of electricity supply with threats of disconnection of electricity supply and continued demands of alleged backdated consumption of electricity supply is unfair to consumers.

26. Justice Makau stated that the court when dealing with such dispute is required to take apragmatic view of the rights of the customer as it is the customer who is placed at a disadvantage vis-à-vis the supplier of services or goods. He relied on the Supreme Court of India Civil Appellate Jurisdiction Civil Appeal No. 3883 of 2007 National Insurance Co. Ltd. Versus Hindustan Safety Glass Works Ltd, where the Honorable Judges observed:“in our opinion, in a dispute concerning a consumer, it is necessary for the courts to take a pragmatic view of the rights of the consumer principally since it is the consumer who is placed at a disadvantage vis-à-vis the supplier of services or goods. It is to overcome this disadvantage that a beneficent legislation in the form of the Consumer Protection Act, 1986 was enacted by Parliament.”

27. EPRA applied its balancing act and determined that the bill of KShs. 421,400 be paid in 36 equalinstalments of KShs. 11,706 commencing 1st December 2023. Back billing for 36 months is an unfair practice. The KPLC charter requires them to get actual readings at least for eight months in a year. However, the statute does not stop them from recovering bills that are older than the eight months. As such, we uphold EPRA’s determination that the bill of KShs. 421,400 should be paid in 36 equal instalments of KShs. 11,706

(ii) What damages are owed to the Appellant? 28. The Appellant herein raised a claim of negligence and trespass against the Respondent. EPRA inits determination found the Respondent herein liable for trespass. The determination and the evidence thereunder clearly show an act of trespass by the client.

29. The Appellant also states that the Respondent was negligent in its action to estimate bills. In itssubmission, it relied on the doctrine of laches in claiming that the Respondent is estopped from claiming the bill for 36 months. Looking at the facts of this case and the principles under the tort of negligence, this Tribunal finds that it does not apply in this circumstance.

30. In Caparo Industries PLC v Dickman {1990} 1 ALL ER 568 and Chun Pui v Lee Chuen Tal {1988} RTR 298 highlighted the determinants of negligence as follows: “The requirements of the tort of negligence are, as Mr. Batts submitted, fourfold, that is, the existence of a duty of care, a breach of the duty, a causal connection between the breach and the damage and foreseeability of the particular type of damage caused.” The Appellant herein did not argue out or show how these elements applied in this case. As such we do not find the Respondent herein negligent.

31. The Appellant also sought for punitive damages against the Respondent. EPRA did not awardthese and we also do not find any reason to award the same. In this case, we are not satisfied that the actions of the Respondent were so oppressive to justify an award of punitive damages. In the case of Godfrey Julius Ndumba Mbogori & another V. Nairobi City County [2018] eKLR the court stated the following“Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter. We are guided by the case of Rookes v Barnard [1964] AC 1129 where Lord Devlin set out the categories of cases in which exemplary damages may be awarded which are: 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”.

32. Based on the above, we uphold the award given by EPRA which is KShs. 100,000 in generaldamages and KShs. 5,000 for the broken pot.

Disposition 33. 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.That the Appellant is liable to pay the accumulated bill of KShs. 421,400 in 36 equal instalments ofKShs. 11,706ii.That KShs 5,000 awarded for the broken pot and KShs. 100,000 as general damages is herebyupheld.iii.That the Respondent shall compensate the Appellant for the 47 cut trees as it was directed byEPRA.

DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF FEBRUARY 2024. ………………………MS. DORIS MWIRIGI - VICE CHAIRPERSON………………………ENG. BUGE HATIBU WASIOYA - MEMBER…………………………MR. FEISAL SHARIFF IBRAHIM - MEMBERSIGNED BY: DORIS KINYA MWIRIGI