[2022] KEET 256 (KLR)

Mutiso v Kenya Power & Lighting Company (Tribunal Case 001 of 2020) [2022] KEET 256 (KLR) (16 June 2022) (Ruling)

Neutral citation: [2022] KEET 256 (KLR)

Republic of Kenya

In the Energy & Petroleum Tribunal

Tribunal Case 001 of 2020

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

June 16, 2022

Between

Stephen Mutuku Mutiso

Appellant

and

Kenya Power & Lighting Company

Respondent

Ruling

aARGUMENTS 1. This ruling is in respect of a Notice of Preliminary Objection dated the May 13, 2022 filed by the respondent herein. The respondent raised a preliminary objection with respect to this appeal dated February 18, 2020. The appeal is against the decision of the Energy and Petroleum Authority (EPRA) made on January 15, 2020.

2. The respondent raised a preliminary objection on the ground that this honorable tribunal lacks jurisdiction to hear and determine this appeal as the same offends section 5 and 6 of the Civil Procedure Act (cap 21) read together with section 3A of the Civil Procedure Act and order 2 rule 15 of theCivil Procedure Rules. The appellant opposed the preliminary objection and the same was canvassed by way of written submissions.

Respondent’s submission 3. The respondent filed its submission dated May 13, 2022. It is their submission that this honorable tribunal is barred by the doctrine of sub judice to hear and determine the matter. The Respondent averred that the letter issued by EPRA dated January 15, 2022 was not a final determination of the matter and in that regard, the matter had not been concluded and was still pending before the authority. The respondent relied on section 6 of the Civil Procedure Act which provides as follows:No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceedings between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.

4. The respondent also relied on several authorities which this tribunal has considered. In its conclusion, it submitted that the doctrine of sub judice starved of the jurisdiction of this tribunal to hear and determine this appeal.

5. At the outset, the tribunal takes the view that the Energy Tribunal Rules 2008, which regulate and govern the procedure of the tribunal, does not expressly incorporate the Civil Procedure Act and the rules made there under. However, the tribunal recognizes the doctrine of res sub-judice and it will not entertain disputes pending resolution before other lawfully constituted dispute resolution forums.

Appellant's submissions 6. The appellant’s submission was that the matter was not sub judice as the authority had given its decision on the matter. The plaintiff averred that it was from the decision given by EPRA through its letter that it was not satisfied hence this appeal. The appellant submitted that EPRA had already decided on its complaint when it stated that it had no authority to hear and determine the issues on damages and interest.

7. The appellant relied on sections 23 and 24 of the Energy Act. Section 23 provides for decisions of the authority on request by the applicant. Section 24 speaks to the appellate jurisdiction of the tribunal from the decisions of the authority. The appellant also relied on several authorities which this tribunal has considered.

Analysis and determination 8. We have considered the record and submissions made by both the appellant and respondent herein as well as the law. Having analyzed the arguments of both parties, the matter of jurisdiction rests on a single issue which is whether this appeal amounts to sub judice hence denying this tribunal jurisdiction.

9. It is trite that jurisdiction is everything. This is a long established principle and was well opined in the case ofOwners of the Motor Vessel “Lilian S” Vs Caltex Oil (Kenya) LTD (1989). Nyarangi JA stated:“Jurisdiction is everything. Without it, a court has no power to make to take one more step. Where a court has no jurisdiction, there would be no basis for continuation of proceedings pending other evidence. A court of law must down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

10. The jurisdiction of the tribunal is well established under section 36 of the Energy Act and which states:1. The tribunal shall have jurisdiction to hear and determine all matters referred to it, relating to the energy and petroleum sector arising under this Act or any other Act .2. The jurisdiction of the tribunal shall not include the trial of any criminal offence.3. The tribunal shall have original civil jurisdiction on any dispute between a licensee and a third party or between licensees.4. The tribunal shall have appellate jurisdiction over the decisions of the authority and any licensing authority and in exercise of its functions may refer any matter back to the authority or any licensing authority for re-consideration.5. The tribunal shall have power to grant equitable reliefs including but not limited to injunctions, penalties, damages and specific performance.

11. Appellate jurisdiction of this tribunal is further particularized under section 23 and 24 of the Energy Act. Section 23 makes EPRA the first avenue for complaint on any issue that may touch on its mandate. The section mandates EPRA to make decisions on any matter before it. The appellant herein made a complaint to the authority through its letter dated October 18, 2019.

12. The purpose of the doctrine of sub judice, as expounded by the Kenyan Supreme Court in the case of Kenya National Commission on Human Rights vs Attorney General, Independent Electoral & Boundaries Commission & 16 others, is to stop the filing of a multiplicity of suits between the same parties. Where a party invokes the doctrine of sub judice, the party must establish that there is more than one suit over the same subject matter, one suit was instituted before the other, both suits are pending before courts of competent jurisdiction and the suits are between the same parties.

13. The respondent herein avers that there are pending proceedings before EPRA and that since EPRA is yet to make a determination, the tribunal is barred by the doctrine of sub judice. The real issue before this tribunal, in our view, is whether the authority had made a decision from which an appeal could be entertained by the tribunal.

14. Section 23 (1) of the Energy Act requires EPRA to make a decision in writing within sixty days and the decision should be communicated to the applicant within seven days from the date the decision was made. The record shows a letter written by EPRA dated January 15, 2020. The letter was in response to an email dated January 7, 2020 and a letter dated October 11, 2019.

15. Although the dates of the appellant’s letter in EPRA’s differ from the appellant’s letter submitted before this tribunal, the content of the authority’s letter was in response to the same complaint. In it’s letter, EPRA stated that it could not compel the respondent to compensate the appellant for any damages/interest for loss of business and interest as a delayed connection of power supply. In the second part of the letter, it stated that it would address matters touching on its mandate as provided for in the Energy Act, 2019.

16. It is on this second part, that the respondent has relied on to say that there are proceedings pending before EPRA and hence raised a preliminary objection. The purpose of a preliminary objection has been discussed broadly in several authorities. In the case of Mukhisa Biscuit Manufacturing Co Ltd vs West End Distributors Ltd (1969) EA 696,the Court of Appeal held.“So far as I am aware of a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleading and which if argued as a preliminary objection may dispose of the suit,”

17. The respondent argues that a determination has not been made by the EPRA and hence the matter is still pending before it. The appellant argues that the authority made its decision. The tribunal notes, as it was stated by Justice S M Githinji in the case of Gladys Pereruan vs Betty Chepkorir [2021] eKLR, that a determination on a preliminary objection if allowed may dispose off the entire suit without giving parties the opportunity to be heard. Therefore, its determination had to be done with caution as the court had a duty to hear all parties and determine the case on merit. It is with abundance of caution that this tribunal has approached this case.

18. From the record provided to this tribunal, the appellant’s letter dated October 18, 2022 shows the genesis of this matter where a complaint was made to EPRA. This was after the appellant had written to the respondent on August 8, 2019 and on October 18, 2019. There was no response from the respondent and the appellant resorted to take its complaint to EPRA. In response to the appellant’s complaint, he received the letter dated January 15, 2022 where, EPRA stated it had no powers to compel the respondent to pay damages and interest. It added that it would however address matters touching on its mandate.

19. The determination on whether this tribunal has jurisdiction relies on whether the EPRA’s letter dated January 15, 2020 was a decision as per the provision of section 23 (1) of the Energy Act. It should be noted that section 23 of the Energy Act provides the procedures on how EPRA should make its decision. EPRA, under section 23 of the Energy Act, is required to make a decision within sixty (60) days. It is important to note that, unlike the repealed Energy Act, the Energy Act, 2019 placed timelines on decisions of EPRA. The Energy (Complaints and Dispute Resolution) Regulations, 2012 have not been reviewed to align to the Energy Act, 2019 nor has new regulations been made as provided under section 167 (1) (m) of the Energy Act.

20. Section 23 (1) of the Energy Act requires EPRA to make a decision within sixty days. Section 23 (2) and (3) of the Energy Act requires such a decision to be in writing and communicated to both parties within seven days from the date the decision was made. Where EPRA does not make a decision within sixty days, then one may appeal to the tribunal.

21. The appellant herein made his complaint to EPRA on October 18, 2019 and he was entitled to a decision within the timelines set by section 23 of the Energy Act. The respondent herein stated in its submission that the letter did not give the final determination on the matter. This is a misinterpretation of section 23 of the Energy Act as EPRA was required to make a decision within 60 days and communicate its decision within seven days thereafter. EPRA’s letter only stated that it had no powers to compel the respondent to compensate the appellant for damages and interest. This was one the main concerns of the appellant herein apart from the refund. In the second part of its letter, it stated that it shall address matters touching on its mandate. This was not clear as it did not communicate which matters it referred to with regard to the appellant’s complaint and when they were to be addressed.

22. Where no decision was made, then the appellant was entitled to appeal to this tribunal. EPRA’s letter dated January 15, 2020 was sent more than 60 days after the date the complaint was received at EPRA offices, which was on October 18, 2019. The letter was a decision of the EPRA as per the provisions of section 23 of the Energy Act. The appellant herein was entitled to appeal EPRA’s decision, including any other issue that EPRA had not made a decision on.

23. Weighing on the appeal before this tribunal, the arguments made for and against the jurisdiction of this tribunal and the law, we do find that the appeal is not sub judice as urged by the respondent and the tribunal has jurisdiction in this matter.

24. The preliminary objection therefore lacks merit and is dismissed. Costs shall abide the outcome of the appeal.

DELIVERED AT NAIROBI ON 16TH DAY OF JUNE, 2022. ............................MR KIOKO KILUKUMI SCCHAIRPERSON...........................MS DORIS KINYA MWIRIGIVICE CHAIRPERSON............................ENG BUGE HATIBU WASIOYAMEMBER..............................MR FESIAL SHARIFF IBRAHIMMEMBER...........................MS DOROTHY JEMATORMEMBER...........................ENG FIDELIS MULI KAVITAMEMBERI certify that this is a true copy of the originalTHE SECRETARY, ENERGY AND PETROLEUM TRIBUNAL