https://new.kenyalaw.org/akn/ke/judgment/keet/2026/16

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: ENERGY AND PETROLEUM TRIBUNAL CASE NUMBER: EPA/E019/2025 MIRERA FOCUS WATER ASSOCIATION VS KENYA POWER & LIGHTING COMPANY JUDGMENT # A. INTRODUCTION 1. The matter before this Tribunal is an appeal arising from the determination of the Energyand Petroleum Regulatory Authority (EPRA), delivered on 28th May 2025 in Dispute No. EPRA/PEACP/CP/4/680/2024 between the Appellant, Mirera Focus Water Association, and the Respondent, Kenya Power & Lighting Company PLC. 2. The Appellant lodged the present appeal seeking, inter alia, the setting aside of thedecision, a declaration that the disputed electricity bill of Kshs. 1,254,795.00 was unlawfully levied, findings that the Respondent failed to establish the existence of any lawful basis for the impugned bill, an award of general damages for prolonged denial of electricity supply, and costs of the appeal. 3. The Respondent opposed the appeal through a Statement of Response dated 15th July2025, maintaining that the disputed bill was valid, represented accumulated unpaid electricity charges, and that the Appellant had on several occasions engaged in illegal abstraction of electricity through meter bypasses and interference with the Respondent's installations. The Respondent therefore urged the Tribunal to dismiss the appeal with costs. 4. The appeal proceeded to a full hearing before this Tribunal. The Appellant called onewitness, Mr. Geoffrey Githiri Kamau, Secretary of the Association, while the Respondent called its witnesses in support of its case. The parties thereafter filed written submissions, which this Tribunal has carefully considered together with the entire record. # B. BRIEF FACTS 1. The Appellant is a community water project situated in Kinangop, Nyandarua County,whose operations depend on electricity supplied by the Respondent for pumping and distributing water to members of the community. The dispute concerns electricity account number 108690542. The dispute arose after the Respondent demanded payment of an electricity bill in the amount of Kshs. 1,309,662.00, which was subsequently revised to Kshs. 1,254,795.00. 1. According to the Appellant, the bill was unsupported by verifiable meter readings, boreno correlation to its historical consumption, and arose after the Respondent had removed the billing meter from the premises, thereby denying the Appellant any opportunity to verify the alleged consumption. The Appellant further contended that the Respondent confiscated both the meter and the drop cable during investigations and thereafter failed to produce the meter for independent scrutiny. 2. The Appellant maintained before the Authority that the Respondent had repeatedlydisconnected its electricity supply, installed replacement smart meters without consultation, confiscated the metering equipment during investigations, and thereafter sought to recover alleged historical consumption without producing the primary evidence upon which the billing was based. It further asserted that the Authority itself established during its site visit that there was no billing meter or drop cable installed at the premises. 3. The Respondent, on the other hand, maintained that the Appellant had a long history ofelectricity theft through puncturing service cables, bypassing electricity meters, relocating metering equipment without authority, and illegally reconnecting itself after lawful disconnections. It contended that inspections conducted between 2018 and 2024 consistently revealed acts of meter tampering and illegal electricity abstraction, thereby justifying the disputed bill and subsequent disconnections. 4. After considering the parties' evidence, conducting a site visit and reviewing the materialpresented before it, the Authority concluded that the disputed amount represented accrued unpaid electricity consumption rather than a computation of unbilled electricity arising from electricity theft. Dissatisfied with that determination, the Appellant preferred the present appeal, challenging both the factual and legal conclusions reached by the Authority. 5. The matter came up for hearing before the Tribunal. The appeal proceeded to a fullhearing before the Tribunal on 12th February 2026. The Appellant called one witness, while the Respondent called two. The Appellant’s witness, Mr Geoffrey Kamau, testified that the disputed bill was not supported by verifiable meter readings and maintained that neither he nor the Association had ever engaged in electricity theft or meter bypassing. He denied allegations that the service cable had been punctured in 2018 or that the smart meter had been bypassed in 2024. 6. He further stated that the Respondent's officers had removed the billing meter and dropcable from the premises during investigations, before EPRA could examine them. According to him, this denied both the Authority and the Appellant the opportunity to verify the basis of the disputed bill. He also challenged the authenticity of the photographs produced by the Respondent, asserting that there was no chain of custody or expert authentication linking them to the alleged acts of electricity theft. 7. Mr. Geoffrey Kamau also testified that the Respondent persistently billed the Associationfor more electricity than it actually consumed and referred to billing entries that, in his view, reflected impossible levels of electricity consumption, including a charge exceeding KShs. 660,000 allegedly accumulated within only two days. He maintained that the Association always paid for electricity actually consumed and that the disputed balance accumulated as a result of erroneous billing rather than non-payment. 8. The Respondent's first witness, Mr. Paul Kinyanjui, a Commercial Services Officer withKenya Power, adopted his witness statement and the Respondent's documentary bundles as his evidence. He testified that the Appellant had previously been found engaging in illegal electricity abstraction through punctured service cables and meter bypasses, necessitating the installation of smart meters and repeated replacement of metering equipment. 9. He explained that inspection readings are distinct from billing readings and aretherefore not captured in the customer's billing statement. According to the witness, billing readings are collected separately by designated meter readers using dedicated billing equipment. He further stated that after interference with the original analogue meter, a smart meter was installed on the pole outside the Appellant's premises to reduce the possibility of tampering. 10. Under cross-examination, Mr. Kinyanjui acknowledged that he had not personallywitnessed several of the inspection incidents referred to in his statement, including the alleged confrontation involving the Respondent's security officers. He also conceded that certain inspection notices allegedly issued to the Appellant were not contained in the Respondent's bundle of documents and that some aspects of his testimony were based on reports from other officers. 11. The Respondent's second witness, Mr. Paul Rotich, testified that the Appellant hadpreviously been served using a four-register smart meter recording high-rate, low-rate, maximum demand and total consumption. According to him, because of the nature of that meter, the billing statements could not display previous and current readings in the conventional format, although the detailed readings remained available in the actual bills generated by the system. 12. During cross-examination, the witness admitted that he had not personally participatedin the inspection conducted on 9th July 2024 and was unable to confirm whether any defective installation notice had been issued on that occasion. He also confirmed that communication relating to the adjustment of the customer's security deposit from Kshs. 3,000 to Kshs. 58,000 was internal and had not been communicated to the Appellant. The Tribunal thereafter closed the hearing and directed the parties to file written submissions. # Appellant’s Submissions 1. The Appellant submits that the appeal should be allowed because the impugnedelectricity bill of Kshs. 1,312,795.00 was unlawfully generated without verifiable meter readings, contrary to the Constitution, the Energy Act, 2019 and the principles of fair administrative action. The Appellant seeks, among other reliefs, nullification of the disputed bill, compensation for violation of consumer rights, reimbursement for the Respondent's use of the Appellant's privately funded electricity infrastructure, and costs of the appeal. 2. The Appellant argues that the Respondent issued substantial electricity bills over aprolonged period without indicating the previous and current meter readings on the billing statements. It is submitted that the omission rendered the bills unverifiable and deprived the Appellant of any meaningful opportunity to verify actual electricity consumption. Reliance is placed on Article 35 of the Constitution and the consumer's right to access information necessary to verify utility charges. 3. The Appellant further submits that successive smart meters generated substantial billsdespite the absence of corresponding meter readings and that one meter allegedly generated a bill of over Kshs. 660,000 only two days after installation, demonstrating that the billing system was fundamentally unreliable. 4. It is submitted that although the Appellant financed the construction of approximatelyone kilometre of electricity line together with the transformer, the Respondent subsequently connected thirteen additional customers to that private infrastructure without obtaining the Appellant's consent or compensating it. The Appellant contends that the Respondent thereby unjustly benefited from infrastructure wholly financed by the Appellant. 5. The Appellant argues that the Respondent violated the doctrine of legitimateexpectation by changing electricity meters without notice, moving the Appellant from the Small Commercial tariff to the Large Power Consumer category, increasing the security deposit from KShs. 3,000 to KShs. 58,000, and installing inaccessible pole-mounted meters without affording the Appellant an opportunity to be heard or providing reasons for those decisions. It is submitted that these actions were arbitrary, oppressive and contrary to the principles of natural justice and fair administrative action. 6. The Appellant contends that allegations of electricity theft and meter tampering hadalready been investigated in January 2019 by the Respondent's Regional Manager, who concluded that the allegations were unsubstantiated and directed that electricity supply be restored without any penalties. Accordingly, the Respondent was estopped from resurrecting the same allegations in subsequent proceedings. 7. The Appellant submits that despite repeated allegations of defective installations andmeter bypassing, the Respondent failed to issue installation inspection reports contemporaneously at the site. It argues that the inspection reports subsequently produced were created retrospectively and therefore lacked evidential value. 8. The Appellant challenges the admissibility and credibility of the Respondent'sphotographic evidence, submitting that the photographs lacked timestamps, chain of custody and digital forensic authentication. It further argues that the certificate of electronic evidence was unreliable because the device allegedly used to capture photographs in 2018 was only introduced into the market several years later. The Appellant also contends that both Respondent's witnesses admitted material inconsistencies during cross-examination and that significant portions of their testimony constituted inadmissible hearsay, as they did not personally witness many of the events they narrated. 9. The Appellant submits that the Respondent relied upon persons who were neitherregistered engineers nor licensed engineering technicians under the Engineers Act and the Engineering Technology Act. It argues that they lacked the statutory competence to undertake engineering inspections or make technical findings capable of supporting billing adjustments or allegations of electricity theft. Consequently, the technical conclusions contained in their witness statements ought to be accorded little or no evidential weight. 10. The Appellant argues that allegations of electricity theft and related criminal conductfall within the jurisdiction of criminal courts and not the Energy and Petroleum Tribunal. It therefore submits that the Respondent's extensive reliance on alleged criminal conduct was legally misplaced and ought to be disregarded. 11. Finally, the Appellant submits that even after commencement of the proceedings, theRespondent continued disconnecting electricity supply and failed to provide monthly itemised bills despite express directions issued by the Tribunal. It argues that these actions demonstrate continuing violations of the Appellant's consumer rights and reinforce the need for the Tribunal to grant the reliefs sought, including cancellation of the disputed bill, compensation and costs. 12. In its supplementary submissions, The Appellant submits that the Tribunal's site visitestablished that the Respondent had indeed connected thirteen customers to the Appellant's privately funded electricity line without consultation or compensation. It argues that Sections 142(5) and 175 of the Energy Act entitle a person who financed electricity infrastructure to reimbursement where subsequent customers are connected to that line. The Appellant therefore urges the Tribunal to order compensation for the Respondent's continued use of its privately funded infrastructure. # Respondent’s Submissions 1. The Respondent submits that the evidence demonstrates a consistent pattern ofelectricity theft and interference by the Appellant over several years. It identifies six separate incidents involving puncturing of service cables, meter bypasses, relocation of meters without authority, interference with smart meters, illegal reconnection after disconnection, and disappearance of metering equipment. According to the Respondent, these incidents establish that the Appellant habitually tampered with electricity installations to avoid accurate billing. 2. The Respondent argues that the Appellant failed to discharge the burden of proving thatthirteen customers were connected to its alleged private electricity line. It relies on Sections 107, 108, 109 and 112 of the Evidence Act and various judicial authorities on the burden of proof, submitting that the Appellant merely listed names of alleged customers without producing documentary evidence establishing the alleged connections. Consequently, the claim for compensation should fail. 3. The Respondent submits that the impugned bill represents accumulated unpaidelectricity consumption over several years and is fully supported by the billing statements and monthly electricity bills produced before the Tribunal. It argues that the accumulation resulted from the Appellant's failure to settle bills when they became due and not from arbitrary billing. 4. The Respondent submits that the omission of previous and current meter readings fromthe billing statement after April 2020 resulted from the installation of four-register smart meters. It explains that these meters record demand (KVA), demand (KW), high-rate and low-rate consumption simultaneously, making it impracticable for all readings to appear on the summary billing statement. Nevertheless, the detailed electricity bills issued to the Appellant contained the relevant readings and accurately reflected consumption. 5. The Respondent submits that the additional security deposit of KShs. 58,000 wascalculated in accordance with its internal procedures applicable to large power consumers, based on the Appellant's maximum recorded demand of 29 KVA. It further explains that the earlier security deposit of KShs. 3,000 had already been applied towards settlement of the Appellant's outstanding electricity debt, necessitating the debit of a fresh security deposit after reconnection. 6. The Respondent submits that, as a public electricity distributor, it is legally entitled torecover unpaid electricity charges and disconnect supply where customers default in payment. It relies on judicial authority affirming that disconnection for non-payment is lawful and maintains that the Appellant's obligation was simply to pay for electricity consumed under the supply contract. 7. The Respondent submits that The Tribunal's site visit did not establish that thirteencustomers were connected to the Appellant's alleged private electricity line. At most, it showed that neighbouring customers are supplied from the same distribution line, which does not prove the Appellant's allegation. 8. The Respondent submits that any claim for reimbursement under Section 142(5) of theEnergy Act must first be presented to the distribution licensee within six years before being referred to the Authority in the event of a dispute. 9. Consequently, the Respondent submits that the Appellant has failed to comply with thestatutory procedure and the doctrine of exhaustion. For that reason alone, the Tribunal should decline the compensation claim and dismiss it. # C. ANALYSIS AND DETERMINATION 39. The tribunal has considered the submissions and pleadings of the parties herein. It is our conclusion that the following are the issues for determination: 1. Whether the Respondent established that the Appellant unlawfully interfered with theelectricity supply installation and metering system. 2. Whether the disputed electricity bill of KShs. 1,312,795.00 (formerly KShs. 1,254,795.00)was lawful, accurate and payable. 3. Whether the Appellant is entitled to compensation arising from the Respondent'sconnection of additional consumers to the electricity line financed by the Appellant. 4. Whether the Appellant is entitled to the reliefs sought. Whether the Respondent established that the Appellant unlawfully interfered with the electricity supply installation and metering system. 1. In its determination, EPRA found that inspections conducted in May 2018, December2018, June 2021, and July 2024 consistently demonstrated interference with the metering system. It relied principally on inspection reports, photographs, and the Respondent's explanation that the analogue meter had been bypassed by replacing the original threephase cable with three single-phase conductors before the installation of a smart meter, which was itself allegedly bypassed. The Authority concluded that all meters installed at the premises had been bypassed. 2. The issue before the tribunal is whether there was sufficient evidence to support theconclusion that the Appellant deliberately interfered with its metering installation, thereby justifying the impugned recalculation of electricity charges. While this standard is lower than proof beyond reasonable doubt, allegations of fraud, theft or deliberate tampering require cogent and credible evidence. 3. The Respondent relied principally on inspection reports dating from 2018, 2021 and2024, photographs depicting alleged bypasses, and testimony from its officers that the Appellant had repeatedly interfered with both the meters. The EPRA Authority accepted this evidence and concluded that the meters installed at the Appellant's premises had been bypassed. 4. There were some inconsistencies in the Respondents' evidence. First, neither of theRespondents' witnesses personally participated in every inspection upon which the Respondents' case rests. The Respondent produced a certificate of electronic evidence stating that the photographs were taken using Mr. Kinyanjui's mobile phone. During crossexamination, however, he acknowledged that the photograph depicting the alleged punctured cable had not been taken using his phone. That admission raises legitimate questions about the accuracy of the certificate and the chain of custody of at least part of the photographic evidence. 5. However, looking at the totality of the evidence, the Respondent produced inspectionreports, photographs and historical records showing recurring instances of alleged meter bypasses, relocation of metering equipment and unusually low recorded consumption during periods when the borehole remained operational. That evidence was further supported by the explanation that, following removal of the alleged bypass, the Appellant's electricity consumption increased substantially and remained consistent with the expected operational profile of the water project. The consistency of those historical records lends some corroborative weight to the Respondent's case. 6. The law does not require absolute certainty in civil proceedings. It requires that theCourt be satisfied that one version of events is more probable than the other. Lord Denning, in Miller -vs- Minister Of Pensions 1947 2 ALL ER in discussing the burden of proof in Civil cases stated as follows:- “That degree is well settled, it must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough, so any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties are equally (un) convincing the party bearing the burden of proof will lose; because the requisite standard will not have been attained.” 1. The question as to what amounts to a balance of probabilities was also discussed in thecase of William Kabogo Gitau -vs- George Thuo & 2 Others [2010], KLR 526, where Hon. justice Luka Kumaru (as he then was), stated as follows:- “In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” 1. Although the Respondent's evidence is not free from inconsistencies, the Tribunal issatisfied that those deficiencies do not entirely displace the cumulative force of the inspection reports, contemporaneous records and historical consumption data. Viewed as a whole, the Respondent has demonstrated, on a balance of probabilities, that there was interference with the metering system. Accordingly, the Tribunal finds that the Respondent has established that the Appellant unlawfully interfered with the electricity metering installation. Whether the disputed electricity bill of Kshs. 1,312,795.00 (formerly Kshs. 1,254,795.00) was lawful, accurate and payable. 1. The burden of proving the correctness of the recalculated bill rests upon theRespondent. A finding of meter tampering does not, of itself, entitle a licensee to levy any amount it considers appropriate. The Respondent must demonstrate that the recalculation is founded upon objective, verifiable and legally permissible criteria. 2. The Respondent submits that following discovery of the bypass, it compared theAppellant's genuine consumption profile after restoration of the meter with the negligible consumption recorded during the period of interference. It states that the Appellant's average daily consumption after removal of the bypass was approximately 1,455 kWh per day, and from that comparison calculated undercharged units amounting to 381,190 kWh under the high tariff and 496,713 kWh under the low tariff, resulting in a recalculated bill of Kshs. 1,254,795.00. EPRA accepted that methodology and concluded that the computation was mathematically consistent with the lost units attributable to consumer interference. 3. The Appellant, however, attacks both the methodology and the resulting computation. Itcontends that the Respondent never produced the underlying meter readings from which the recalculation could be independently verified. It further submits that the billing statements issued throughout the disputed period omitted previous and current meter readings, rendering the bill incapable of verification. It also disputes the assumption that the borehole consumed 1,455 kWh per day, arguing that the figure was unrealistic and inconsistent with the capacity of its pump and the fact that the borehole had ceased operating for extended periods owing to mechanical failure. 4. The Tribunal is equally mindful that once deliberate consumer interference has beenestablished, it is unrealistic to expect the licensee to reconstruct the exact units consumed during the period of bypass with mathematical precision. Consumer interference necessarily compromises the integrity of the metering system. In such circumstances, the licensee is entitled to reconstruct consumption using the best available evidence, provided the methodology adopted is rational, objective and supported by the available data. 5. In the present case, the Respondent did not impose an arbitrary assessment. Rather, itrelied on the Appellant's actual consumption following the restoration of accurate metering, historical inspection records, the duration of the established bypass, and the applicable tariff to reconstruct the unrecorded consumption. That methodology is both logical and consistent with the purpose of Section 159 of the Energy Act, which empowers a licensee to recover electricity consumed but not recorded due to consumer interference. 6. The Appellant criticised certain assumptions underlying the computation and questionedthe absence of the confiscated meter. However, it did not produce any expert evidence, independent engineering analysis, or an alternative computation demonstrating that the Respondent's assessment was erroneous or excessive. Mere criticism of the methodology, without a credible alternative or specific demonstration of computational errors, is insufficient to displace the Respondent's evidence. 7. The Tribunal therefore agrees with the Authority that the Respondent's computation wasnot speculative but was based on objective consumption data collected after removal of the bypass and on historical inspection records demonstrating prolonged interference. While absolute mathematical precision is unattainable where a consumer has deliberately compromised the metering system, the law requires reasonable accuracy rather than exactitude. 8. The Tribunal accordingly finds no basis to interfere with the Authority's finding that therecalculated bill of KShs. 1,254,795.00 represented electricity consumed by the Appellant but not recorded due to deliberate meter bypass. The Respondent sufficiently demonstrated the basis of its computation, and the absence of conventional meter readings on the billing statements does not, in the circumstances of this case, render the assessment unlawful or unreliable.Accordingly, the Tribunal upholds the Authority's finding that the Appellant is liable to pay the recalculated bill of KShs. 1,254,795.00. Whether the Appellant is entitled to compensation arising from the Respondent's connection of additional consumers to the electricity line financed by the Appellant. 1. The Appellant submits that it solely financed the construction of approximately onekilometre of electricity distribution line and that the Respondent subsequently connected thirteen additional consumers to that line without its consent or compensating it as required under Sections 142 and 175 of the Energy Act. It therefore seeks reimbursement for the use of its privately funded infrastructure. 2. The Respondent disputes the claim, contending that the Appellant failed to establish, byway of documentary evidence, that the alleged thirteen consumers were connected through infrastructure exclusively financed by the Appellant. It further submits that no claim for reimbursement under Section 142(5) of the Energy Act was presented to the Respondent before being pursued before the Tribunal. 3. The Tribunal also observes that this issue did not form part of the dispute determined bythe Energy and Petroleum Regulatory Authority. The Authority was seized of a complaint concerning the disputed electricity bill, alleged erroneous billing and disconnection of electricity supply. Its determination neither considered nor made findings regarding reimbursement for privately financed electricity infrastructure. 4. As an appellate Tribunal, this Tribunal is primarily concerned with reviewing thecorrectness of the decision appealed from. While it possesses broad appellate powers, it is generally not appropriate to determine, in the first instance, a substantive claim that was neither pleaded nor adjudicated before the Authority and upon which no findings were made. Such a claim ought to have been presented before the appropriate forum to enable the Respondent to address it fully and for the Authority to make the requisite factual and legal findings. 5. Accordingly, the Tribunal finds that the issue was not properly before the Authority andtherefore does not properly arise for determination in this appeal.This ground of appeal consequently fails. Whether the Appellant is entitled to the reliefs sought. 1. In light of the Tribunal's findings on the preceding issues, the Appellant has notestablished any basis for interfering with the Authority's determination. The principal reliefs sought, including the setting aside of the impugned decision, cancellation of the disputed electricity bill, declaratory orders, compensation, and the mandatory orders relating to the electricity supply and infrastructure, are unsupported by the evidence and the applicable law. 2. Accordingly, the Appellant is not entitled to any of the substantive reliefs sought in theMemorandum of Appeal. The appeal therefore fails in its entirety, leaving only the issue of costs for determination. # D. DISPOSITION 63. Having carefully considered the Appeal, the Tribunal finds that the appeal is devoid of merit and makes the following orders: a) The Appeal is hereby dismissed. b) The determination of the Energy and Petroleum Regulatory Authority in Dispute No. EPRA/PEACP/CP/4/680/2024 delivered on 28th May 2025 is hereby upheld in its entirety. c) Each party to bear its own costs **Dated and delivered at Nairobi this 16th of July 2026.** 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: 2026-07-17 10:22:15 |