Rubia v Kenya Power & Lighting Company Plc & 4 others (Petition E006 of 2025) [2026] KEHC 12852 (KLR) (14 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MOMBASA** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E006 OF 2025** **CHARLES WAITHAKA RUBIA ………………..……..……..PETITIONER** **VERSUS** **KENYA POWER & LIGHTING COMPANY PLC…….1ST RESPONDENT** **CABINET SECRETARY, MINISTRY** **OF ENERGY & PETROLEUM…………………………2ND RESPONDENT** **THE HON. ATTORNEY GENERAL ………………......3RD RESPONDENT** **AND** **COUNTY GOVERNMENT OF NAIROBI ……1ST INTERESTED PARTY** **COUNCIL OF GOVERNORS …………………2ND INTERESTED PARTY** **JUDGMENT** **Introduction** 1. On 14 February 2025, the 1st respondent, the Kenya Power & Lighting Company PLC ("KPLC" or "the 1st respondent"), disconnected the supply of electricity to several offices of the 1st interested party, the County Government of Nairobi, on account of unpaid electricity bills. The disconnection precipitated a public standoff between the utility and the County that played out, quite literally, on the streets of the capital, and was ultimately defused through a mediation convened by the Head of the Public Service, following which power was restored. It is that episode, and the pattern of conduct of which the petitioner says it forms part, that has given rise to this petition. 2. The petition raises a question of considerable public importance, which is, whether a State-controlled utility, which enjoys a *de facto* monopoly over the distribution and retail supply of electrical energy in Kenya, may resort to the self-help remedy of disconnecting electricity to the offices and essential installations of a county government including, on the material before this court, threatened disconnections to a maternity hospital, mortuaries, fire stations and street lighting, as a means of collecting a disputed debt, without first invoking the intergovernmental dispute resolution mechanisms contemplated by article 189 of the Constitution and the Intergovernmental Relations Act, cap. 265F ("IGRA"), and the special debt-collection procedure prescribed by section 161 of the Energy Act, cap.314. 3. Beneath that question lies a second, and in my humble view, the more profound question of what do the social and economic rights guaranteed to every person under article 43 of the Constitution demand of a State organ or agency whose conduct interferes with, or threatens to interfere with, the existing enjoyment of those rights? It is on this second question that the parties have joined issue most sharply, and it is on this question that I have found it necessary to consider not only the pronouncements of our own courts but also the jurisprudence of the Constitutional Court of South Africa, the Supreme Court of India, and courts of other Commonwealth jurisdictions whose constitutional texts and experiences illuminate our own. **The parties** 1. The petitioner, Charles Waithaka Rubia, describes himself as a resident of Mombasa County suing in his own interest and in the public interest of the residents of Kenya’s forty-seven counties. The 1st respondent is a public utility company incorporated under the Companies Act and listed on the Nairobi Securities Exchange, in which the national government holds a controlling stake of 50.1 per cent of the issued shares. It is the licensed distributor and retailer of electrical energy in Kenya under the Energy Act. The 2nd respondent is the Cabinet Secretary responsible for energy and petroleum, under whose State Department the 1st respondent is placed. The 3rd respondent is the Hon. Attorney General, sued in his representative capacity under article 156(4) of the Constitution. The 1st interested party is the County Government of Nairobi, a county government established under article 176 of the Constitution, and the 2nd interested party is the Council of Governors, a body established under sections 19 and 20 of IGRA. **The petition and the petitioner’s case** 1. By his petition dated 28 February 2025, the petitioner prays for the following orders: *(a) An order quashing the action by the 1st respondent to cut off power supply to the 1st interested party;* *(b) An order to the 1st respondent to restore the cut power to the offices and essential services of the 1st interested party pending determination of the dispute with the 1st interested party under the Intergovernmental Relations Act;* *(c) A declaration terming the act of arbitrary cutting of power supply by the 1st respondent without exhausting the dispute mechanisms provided under the Intergovernmental Relations Act to be unconstitutional;* *(d) A declaration that cutting of power supply by the 1st respondent without exhausting the dispute mechanisms provided under the Intergovernmental Relations Act is unconstitutional and breaches Kenyans’ rights to the highest standards of healthcare under article 43 of the Constitution;* *(e) A declaration that cutting off power to essential services of the 1st interested party such as street lighting, without exhausting the dispute resolution measures in the Intergovernmental Relations Act, is unconstitutional for endangering Kenyans’ right to protection of their safety in the public streets, and economic interests from businesses dependent on electric power supply;* *(f) An order directing the 1st respondent to forward its alleged payment of bills dispute with the 1st interested party to the quasi-judicial dispute resolution mechanisms provided under the Intergovernmental Relations Act;* *(g) Any other order this Honourable Court deems fit to grant; and* *(h) Costs of the petition.* 1. The petition is supported by two affidavits sworn by the petitioner on 28 February 2025. The factual foundation of the petitioner’s case may be summarised as follows. On 14 February 2025, the 1st respondent disconnected electricity to several offices of the 1st interested party over unpaid bills, grinding, in the petitioner’s words, the machinery of the County to a halt. In the supporting affidavit accompanying his motion, the petitioner further deposed that the 1st respondent had threatened to disconnect electricity to Pumwani Maternity Hospital and various mortuaries run by the County, an escalation which, he deposed, would instantly imperil patients on life-support; to the fire station services, an essential emergency service; and to power supply at night, the only time garbage and sewerage can safely be moved in the city. 2. The petitioner contends that the disconnection of 14 February 2025 was not an isolated incident but part of a pattern. He cites the disconnection of Busia County Referral Hospital some eight years earlier over an unpaid bill of Kshs. 500,000/=, which, according to the then Medical Superintendent, severely affected services in the theatre and nursery and forced accident victims to be transferred to a private facility; the loss of power at Kisumu District Hospital in 2014; a similar crisis at Mombasa (Coast General Teaching and Referral) Hospital in March 2023; and the disruption of Homa Bay’s water supply when power to its intake facility was cut. He avers that while the 1st respondent swiftly disconnects counties over unpaid bills, it itself owes the counties billions of shillings in unpaid land rates, wayleave charges and water bills. 3. The petitioner’s case in law is that the dispute between the 1st respondent, a State corporation in which the national government holds a controlling interest and over which it exercises pervasive control, and the 1st interested party is an intergovernmental dispute within the meaning of article 189 of the Constitution; that articles 189(3) and (4) and sections 30 to 35 of IGRA obliged the 1st respondent to make every reasonable effort to resolve the dispute amicably, and to apply and exhaust the alternative dispute resolution mechanisms established under that Act, before resorting to what he terms the draconian self-help of disconnection; and that the disconnection, effected without adequate public notice, violated or threatened the rights of Kenyans under articles 26, 28, 35, 43, 46 and 47 of the Constitution. 4. In his written submissions dated 12 October 2025, learned counsel for the petitioner, Mr. Mogaka, developed three issues: first, whether KPLC, a State-owned corporation, ought to have taken its dispute with Nairobi County through the intergovernmental dispute resolution mechanism under article 189; secondly, whether a county government and its electricity supply constitute an essential service within the meaning of section 81 of the Labour Relations Act; and thirdly, whether cutting electricity supply to critical infrastructure and essential services of a county government breaches the rights of Kenyans under the Constitution. 5. On the first issue, counsel submitted that the corporate veil cannot obscure the reality that KPLC is an instrument of the national government: the national government holds the controlling stake; the State directly appoints five of the nine directors; Executive Order No. 2 of November 2023 on the Organisation of Government places KPLC under the State Department for Energy; its terms of service are regulated by the State Corporations Advisory Committee; its governance is subject to the Mwongozo Code of Corporate Governance for State Corporations; and its mandate flows from statute and historical continuity dating to 1922 rather than from any competitive procurement. Counsel relied on the principles governing the lifting of the corporate veil discussed in *Ukwala Supermarket v Jaideep Shah & another* [2022] KEHC 2207 (KLR) and on *Mwarania v Cabinet Secretary, National Treasury & 2 others* [2023] KEELRC 2541 (KLR). He submitted further that under the Fourth Schedule to the Constitution electricity is a shared function, energy policy including electricity and gas reticulation and energy regulation being a national government function, while county planning and development, including electricity and gas reticulation and energy regulation, and street lighting under county transport, are county functions; so that any dispute relating to electricity between the parties is an intergovernmental dispute attracting article 189(2) and (3). 6. Counsel pointed to the history of precisely such intergovernmental engagement between these very parties: the 2012 joint committee established at the direction of the Parliamentary Committee on Local Authorities and Funds, which brought together the Permanent Secretaries for Finance and Local Government, the 1st respondent’s Managing Director and the then Town Clerk, and which reconciled the parties’ mutual indebtedness, the City Council paying Kshs. 453,361,474.50 by instalments, the 1st respondent waiving Kshs. 212,098,347.95, and the wayleave debt being agreed at Kshs. 426,167,900; and the February 2025 mediation convened by the Head of the Public Service, Mr. Felix Koskei, bringing together the Governor of Nairobi and the Cabinet Secretary for Energy, which resulted in the restoration of power. These interventions, counsel submitted, are an acknowledgment by conduct that the dispute is intergovernmental in character. 7. On the second and third issues, counsel submitted that electricity, though not expressly enumerated in the Bill of Rights, is inextricably linked to the rights to life, dignity and health, and is properly regarded as a derivative or enabling socio-economic right through which the rights under article 43 are realised. He invoked article 14(2)(h) of the Convention on the Elimination of All Forms of Discrimination Against Women, which Kenya ratified in 1984 and which recognises the right to adequate living conditions particularly in relation to housing, sanitation, electricity and water supply; Sustainable Development Goal 7 on universal access to energy; and the International Labour Organisation’s conception of essential services as those whose interruption would endanger the life or health of the population, a conception domesticated in section 81 of the Labour Relations Act, whose Fourth Schedule lists, among essential services, water supply services, hospital services, fire services and local government authorities, whose functions the county governments inherited. 8. Counsel drew the court’s attention to comparative jurisprudence. From India, he cited *Sudharshan Kumar Sharma & another v State of NCT of Delhi & others*, W.P.(C) 13217/2019 (Delhi High Court, 14 November 2022), and the observation of the Supreme Court of India in *Dilip (Dead) through LRs v Satish & others*, Criminal Appeal No. 810 of 2022, that "electricity is a basic amenity of which a person cannot be deprived"; and the recognition in *Association of Hospitals v Maharashtra Electricity Regulatory Commission* (APTEL) and *Association of Industrial Electricity Users v State of A.P.* that hospitals and comparable institutions constitute a distinct class of consumer that cannot be equated with commercial consumers. From Australia, he cited the life-support customer protections in the National Energy Retail Rules (rr. 124A–124D), under which supply may not be disconnected from premises on which life-support equipment is operated, even where bills are unpaid, and the analogous restrictions on water disconnection under the Water Industry Competition (General) Regulation 2024. From South Africa, he relied on *Joseph v City of Johannesburg* 2010 (4) SA 55 (CC) for the proposition that electricity is an important basic municipal service which local government is ordinarily obliged to provide, and that the rights and obligations attending its supply have their basis in public law. **The 1st respondent’s case** 1. The 1st respondent opposes the petition through the replying affidavit of Ms. Nicole Kihara, a Legal Officer in its employ, sworn on 24 November 2025, and through written submissions dated 3 April 2026 filed by learned counsel Ms. Owano. Its case may be summarised under five heads. 2. First, the 1st respondent contends that the petition is *sub judice*. It points to Milimani ELCEPPET/E009/2025: *Kenya Power & Lighting Company v County Government of Nairobi & Nairobi Water & Sewerage Company Ltd*, filed at the Environment and Land Court on 24 February 2025, four days before this petition, which, it says, concerns the same disconnection of 14 February 2025, the 1st interested party’s retaliation, and its aftermath. Relying on section 6 of the Civil Procedure Act, the decision of the Supreme Court in *Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)* [2020] eKLR, and *Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga* [2013] eKLR, the 1st respondent urges this court to down its tools to avoid the risk of conflicting decisions. 3. Secondly, the 1st respondent contends that the petitioner lacks *locus standi*. In its view, a plain reading of the petition reveals that the petitioner is, in substance, prosecuting the 1st interested party’s cause in the sense that all the alleged violations arise from engagements between the 1st respondent and the County relating to a contract for the supply of electricity, and the prayers sought are orders and declarations in favour of the County. Since the County is, under articles 176(2) and 235 of the Constitution as read with sections 6, 56 and 57 of the County Governments Act, a body corporate capable of suing in its own name, the petitioner has no legal or factual basis to purport to vindicate its rights or to litigate on behalf of the forty-seven counties. Reliance was placed on *Daykio Plantations Limited v National Bank of Kenya Limited & 2 others* [2019] eKLR and *Enrico Quercioli & another v Director of Public Prosecutions & 2 others* [2021] eKLR. 4. Thirdly, the 1st respondent contends that the petition does not meet the standard of precision required of constitutional petitions. Citing *Anarita Karimi Njeru v Republic* (1979) KLR 154, *Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others* [2013] eKLR and *Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others* [2014] eKLR, it submits that the petitioner has not demonstrated, with the requisite particularity, the specific rights violated, the manner of their violation, or any nexus between the impugned conduct and the violation of the petitioner’s own rights. As to article 43, it is deposed that no incident report, no affidavit from any health facility, no medical evidence, and no clear causation linking any disconnection to a denial of health services has been placed before the court; as to article 35, no request for information and no refusal has been shown; and as to article 47, disconnection for non-payment is a lawful contractual and statutory remedy under section 160 of the Energy Act, and the 1st respondent issues disconnection notices to defaulting customers in line with that Act. The events of 2014, 2015 and 2023 in other counties are dismissed as irrelevant, generalised and unsupported by evidence. 5. Fourthly, the 1st respondent contends that the petition is, in truth, an ordinary utility-billing and debt-recovery dispute dressed in constitutional garb, and that constitutional litigation cannot be used to circumvent established dispute-resolution processes. It relies on *John Harun Mwau v Peter Gastrow & 3 others* [2014] eKLR, *Sonko v Supreme Court of Kenya & another* [2023] KEHC 17295 (KLR) and *Ndung’u & another v Wachira & another* [2025] KEHC 7265 (KLR) for the principle of constitutional avoidance, and submits that courts cannot be transformed into debt-management tribunals. 6. Fifthly, on the merits of the article 189 claim, the 1st respondent contends that it is a public company registered under the Companies Act and listed on the Nairobi Securities Exchange; that it is not a "government" and that article 189 and IGRA apply only to disputes between governments; that the burden of initiating the mechanisms under IGRA lies on both parties to a dispute, and no attempt by the 1st interested party to invoke them has been demonstrated; that a private citizen cannot compel the initiation of those mechanisms; and that in any event its mandate under the Energy Act to bill, collect and disconnect for non-payment is not displaced by article 189, section 3 of the Energy Act providing that in the event of conflict with any other Act, the Energy Act prevails on matters of generation, transmission, distribution, supply or use of electrical energy. It depones that it does not disconnect power arbitrarily: disconnections occur only after bills accrue, notices are issued, settlement is attempted and internal regulatory requirements, including a demand letter, are observed. It explains that it does not generate electricity but purchases it in advance from KenGen and independent power producers under binding power purchase agreements with strict monthly payment obligations, and that its ability to keep the lights on for millions of consumers depends on consumers, including county governments, paying their bills as and when they fall due. **The 2nd and 3rd respondents and the interested parties** 1. Despite service, the 2nd and 3rd respondents filed no response to the petition and no submissions. Neither did the 1st interested party, whose conduct is at the centre of the controversy, nor the 2nd interested party, whose public statements are quoted in the petition. The petition therefore stands opposed only by the 1st respondent and, thus, will be determined on the pleadings, affidavits and submissions of the petitioner and the 1st respondent. I would observe, without deciding anything on that account, that the silence of the Attorney General and of the County on a matter of this constitutional importance is regrettable; the court has nonetheless had the benefit of full argument on both sides of every issue. **The ruling on the preliminary objection** 1. By a ruling delivered on 1 July 2025, this court overruled the 1st respondent’s preliminary objection, which had contended that the dispute-resolution architecture of the Energy Act, 2019, the reference of billing disputes to the Energy and Petroleum Regulatory Authority under section 160(3), the appeal to the Energy and Petroleum Tribunal under section 24, and the further appeal to this court under section 37(3), read with article 159(2)(c) of the Constitution and section 9(2) and (3) of the Fair Administrative Action Act, deprived this court of jurisdiction. 2. Guided by the decision of the Supreme Court in *Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties)* (Petition E007 of 2023) [2023] KESC 113 (KLR), the court held that neither the Authority nor the Tribunal has jurisdiction to determine alleged violations of the Constitution; that the doctrine of exhaustion does not bar a suit which primarily and genuinely seeks the enforcement of fundamental rights and freedoms, as explained in *William Odhiambo Ramogi & 3 others v Attorney General & 6 others* [2020] eKLR; and that while the Energy Act may, by its section 3, prevail over other statutes, it cannot prevail over the Constitution. The court further drew attention to section 161 of the Energy Act, which places the Government, county governments and Government agencies in a special category of electricity consumers whose outstanding bills a licensee is to report to the Cabinet Secretary for the National Treasury for onward reporting to Parliament for necessary appropriation. The petition was accordingly found to be properly before the court. That ruling settled the question of jurisdiction, and nothing in the submissions now before me seeks, or could properly seek, to reopen it. What remained for trial is the merits, to which I now turn. I**ssues for determination** 1. Having considered the petition, the affidavits, the rival submissions and the authorities cited, I frame the issues for determination as follows: (i) Whether the petition is *sub judice* by reason of Milimani ELCEPPET/E009/2025; (ii) Whether the petitioner has *locus standi*, and whether the petition meets the constitutional threshold of precision; (iii) Whether the dispute between the 1st respondent and the 1st interested party is an intergovernmental dispute within the contemplation of article 189 of the Constitution and IGRA, and whether the disconnection of 14 February 2025, effected without recourse to those mechanisms or to section 161 of the Energy Act, was unconstitutional; (iv) Whether the disconnection and threatened disconnections violated, or threatened to violate, the rights guaranteed under articles 26, 28, 35, 43, 46 and 47 of the Constitution, this being the issue on which the social and economic rights jurisprudence of this and other jurisdictions principally bears; and (v) What reliefs, if any, should issue, and who should bear the costs. **Whether the petition is *sub judice*** 1. Section 6 of the Civil Procedure Act provides that 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 proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit is pending before a court of competent jurisdiction. The Supreme Court in *Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)* [2020] eKLR restated the conditions for the application of the doctrine: there must be two or more suits filed consecutively; the matter in issue must be directly and substantially the same; the parties must be the same or parties under whom they claim, litigating under the same title; and the suits must be pending before courts of competent jurisdiction. The underlying purpose, as the 1st respondent correctly submits, is to forestall parallel litigation over the same cause and the scandal of conflicting verdicts; and as *Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga* [2013] eKLR teaches, it is the substance of the suits, not their form, that governs. 2. Measured against these conditions, the objection fails, in my humble view, on at least two of the four limbs. First, the parties are not the same, nor does the petitioner claim under any party to the Environment and Land Court suit. The petitioner is a private citizen suing under articles 22 and 258 of the Constitution in his own interest and in the public interest. He is a stranger to Milimani ELCEPPET/E009/2025, in which the 1st respondent sues the County Government of Nairobi and the Nairobi Water & Sewerage Company. A public-interest litigant vindicating the Bill of Rights does not litigate "under the same title" as a utility pursuing, or defending, a commercial claim. 3. Secondly, and more fundamentally, the matters in issue are not directly and substantially the same. The suit before the Environment and Land Court, on the 1st respondent’s own description, concerns the billing dispute between the 1st respondent and the County, who owes what to whom, and the County’s retaliatory conduct and its aftermath. This petition raises a categorically different question: not *whether* the County owes the debt, but whether the *method* by which the 1st respondent sought to enforce it, unilateral disconnection of a county government’s offices and essential installations without recourse to the constitutional and statutory mechanisms for the resolution of intergovernmental disputes, is consistent with the Constitution and with the fundamental rights of the public. The test posited by the 1st respondent itself, whether a final decision in the earlier suit would operate as *res judicata* in this one, supplies the answer: a judgment of the Environment and Land Court determining the quantum of the parties’ mutual indebtedness would not, and could not, determine the constitutional questions raised here, which that court was not asked to decide and which do not depend on the state of the account. 4. I am fortified in this conclusion by the care I propose to take, later in this judgment, to say nothing about the merits of the underlying billing dispute. This court will not determine whether the County owes the 1st respondent for electricity consumed, or whether the 1st respondent owes the County wayleave charges and land rates, or in what amounts. Those questions belong elsewhere, to the Environment and Land Court in the pending suit, or, as I shall hold, more appropriately to the intergovernmental mechanisms the Constitution has established. Confined, as this judgment is, to the constitutionality of the modality of enforcement, no risk of conflicting decisions arises. The first issue is answered in the negative; the petition is not *sub judice*. ***Locus standi* and the precision of the petition** 1. The 1st respondent’s objection to the petitioner’s standing proceeds on the premise that the petitioner is prosecuting the County’s cause. That premise, in my respectful view, mistakes the nature of the claim. The petitioner does not sue to recover the County’s wayleave charges, nor to resist the County’s electricity bills, nor to vindicate any corporate right of the County. He sues because, on his case, the disconnection of power to county offices, hospitals, water installations, fire stations, mortuaries and street lighting injures and threatens *the public*; the eight million residents of Nairobi whom he describes, and by extension the residents of every county exposed to the same treatment, in the enjoyment of their rights to life, dignity, health, water, safety and fair administrative action. That is his cause, not the County’s. 2. The Constitution of 2010 deliberately swept away the restrictive standing rules of the former dispensation. Article 22(1) entitles every person to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or, importantly for this case, *threatened*. Article 22(2) extends that entitlement to a person acting in the public interest, and article 258 confers a parallel right on every person to institute proceedings claiming that the Constitution has been contravened or is threatened with contravention. As this court observed in its ruling of 1 July 2025, the petitioner falls squarely within the category of a public-spirited citizen raising a serious issue of public importance. The fact that the County could sue in its own name and, tellingly, has not, does not disable a citizen from complaining of the impact of the impugned conduct on the Bill of Rights. Were it otherwise, the inertia or complicity of a public body would immunise violations from scrutiny, a result article 22 was designed to prevent. The objection to standing fails. 3. As to precision, the rule in *Anarita Karimi Njeru v Republic* (1979) KLR 154 requires a person seeking constitutional redress to set out with reasonable precision the provisions said to be infringed and the manner of infringement. The Court of Appeal in *Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others* [2013] eKLR cautioned, however, that the rule is a requirement of reasonable, not perfect, precision, and is not a warrant for striking out petitions on hyper-technical grounds; and the Supreme Court in *Communications Commission of Kenya v Royal Media Services Ltd* [2014] eKLR adopted the same standard. This petition identifies the impugned conduct (the disconnection of 14 February 2025 and the threatened disconnections of the hospital, mortuaries, fire stations and night supply); the constitutional provisions engaged (articles 6, 10, 35, 43, 46, 47 and 189); and the manner in which the conduct is said to infringe them (interference with health services, water, safety and county service delivery, absence of public notice, and bypassing of the intergovernmental dispute mechanisms). Whether those claims succeed is a matter for the merits; but the petition pleads them with sufficient particularity to be answered, and the 1st respondent has, in a full replying affidavit and submissions, answered them. The precision objection likewise fails, save that, as will appear, the want of an evidential foundation is fatal to certain of the individual claims, notably that under article 35. **Article 189, the Intergovernmental Relations Act and section 161 of the Energy Act** **(a) The constitutional and statutory framework** 1. Article 6(2) of the Constitution declares that the governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation. Article 189(1) obliges government at either level to perform its functions and exercise its powers in a manner that respects the functional and institutional integrity of government at the other level; article 189(2) permits the two levels to set up joint committees and joint authorities for the management of their shared functions; and articles 189(3) and (4) provide: *"(3) In any dispute between governments, the governments shall make every reasonable effort to settle the dispute, including by means of procedures provided under national legislation. (4) National legislation shall provide procedures for settling inter-governmental disputes by alternative dispute resolution mechanisms, including negotiation, mediation and arbitration."* 1. The national legislation contemplated by article 189(4) is the Intergovernmental Relations Act. Section 31 obliges the national and county governments to take all reasonable measures to resolve disputes amicably and to apply and exhaust the mechanisms for alternative dispute resolution provided under the Act or any other legislation before resorting to judicial proceedings. Section 33(1) requires the parties to undertake all necessary measures to resolve issues in controversy through consultation, conciliation or negotiation before a dispute is formally declared; section 34 requires the Summit, the Council or any other intergovernmental structure to convene, within twenty-one days of the formal declaration of a dispute, a meeting to determine the precise issues in dispute; and section 34(2) directs that where a mechanism or procedure is specifically provided for in legislation or in an agreement between the parties, the parties shall make every reasonable effort to resolve the dispute in terms of that mechanism or procedure. The Supreme Court has repeatedly underscored, most recently in *Nicholus v Attorney General* (supra) and earlier in *Albert Chaurembo Mumbo & 7 others v Maurice Munyao & 148 others*, SC Petition No. 3 of 2016, [2019] eKLR, that where the law establishes such mechanisms, they must ordinarily be given the first opportunity. 2. To these must be added section 161 of the Energy Act, 2019, a provision to which this court drew attention in its ruling on the preliminary objection and which, in my judgment, is decisive of much of this issue. It provides: *161. Where Government or its agencies default in paying electricity bills — Without prejudice to any other remedies available[,] a licensee which has outstanding uncollected billings attributable to the National Government, County Government or any Government agency shall report such billings to the Cabinet Secretary for the National Treasury who shall, in turn, report the same to Parliament for necessary appropriation.* ***(b) Is the dispute between the 1st respondent and the County an intergovernmental dispute?*** 1. The 1st respondent’s answer is that it is a company, not a government, and that article 189 speaks only to "governments". The submission has the attraction of literalism, but article 259(1) of the Constitution commands a different interpretive posture: the Constitution shall be interpreted in a manner that promotes its purposes, values and principles, advances the rule of law and human rights, permits the development of the law and contributes to good governance. A construction of article 189 under which the national government could evade the discipline of cooperative government simply by conducting its relations with counties through wholly- or majority-owned corporate instruments would hollow out articles 6(2) and 189 entirely. The devolution chapters of the Constitution are concerned with substance, not corporate form. 2. In substance, the 1st respondent is an agency and instrument of the national government in the electricity sector. The evidence on record, none of it controverted, establishes that the national government holds the controlling stake of 50.1 per cent; that the State appoints the majority of the board, upon which serving State officers, including the Cabinet Secretary for the National Treasury, sit; that Executive Order No. 2 of November 2023 places the 1st respondent under the State Department for Energy in the Ministry of Energy and Petroleum, the very docket of the 2nd respondent; that its human-resource instruments, remuneration and governance are regulated by the State Corporations Advisory Committee, the Mwongozo Code and the Public Officers Ethics Act; and that its mandate as the national distributor and retailer of electricity derives not from competitive procurement but from statute and statutory succession reaching back a century, its licence continuing under section 225(2) of the Energy Act. The 1st respondent performs a quintessentially public function: under the Fourth Schedule, energy policy including electricity and gas reticulation and energy regulation is a national government function (Part 1), while county planning and development including electricity and gas reticulation and energy regulation, and street lighting under county transport, are county functions (Part 2). The 1st respondent is, as the petitioner’s submissions put it, the implementation agent through which the national side of that shared function is discharged. 3. It follows that when the 1st respondent, in the exercise of that public function, finds itself in a dispute with a county government over the supply of electricity to that government’s installations, a dispute, moreover, in which the county asserts cross-claims for wayleave charges and land rates over public land and infrastructure, the dispute is, in substance, one between the national and county levels of government within the contemplation of article 189(3). Form must yield to substance; the corporate veil, whose lifting our courts countenance where the degree of control extinguishes real autonomy (see *Ukwala Supermarket v Jaideep Shah & another* [2022] KEHC 2207 (KLR)), cannot be deployed to exempt an organ of national government from a constitutional obligation of comity. 4. The conduct of the parties themselves puts the matter beyond argument. When this very dispute erupted in 2011–2012, it was resolved not through disconnection and litigation but through a joint committee of the Permanent Secretaries for Finance and Local Government, the 1st respondent’s Managing Director and the Town Clerk, a mechanism of precisely the character contemplated by article 189(2), which reconciled the mutual debts to the last shilling. And when the dispute erupted again in February 2025, it was resolved within days by a mediation convened by the Head of the Public Service, bringing together the Governor and the Cabinet Secretary for Energy. Neither the Head of the Public Service nor the Cabinet Secretary convenes mediations to resolve ordinary commercial debts between a listed company and its customers. The machinery of national government was engaged because both sides understood, correctly, that this is an intergovernmental dispute. The 1st respondent cannot approbate that machinery when it produces a settlement and reprobate it before this court. **(c) Was the disconnection nonetheless lawful under the Energy Act?** 1. The 1st respondent falls back on sections 3 and 160 of the Energy Act: section 160(1)(a) entitles a licensee to discontinue supply where the consumer fails to pay charges, and section 3 gives the Act primacy over other statutes on matters of distribution and supply. Three answers dispose of the submission. 2. First, as this court held on the preliminary objection, section 3 resolves conflicts between the Energy Act and other *Acts of Parliament*; it cannot elevate the Energy Act above the *Constitution*. Article 2(4) is unambiguous: any law, including customary law, that is inconsistent with the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid. Section 160 must therefore be read, under article 259 and article 20(3)(b), which enjoins a court to adopt the interpretation that most favours the enforcement of a right or fundamental freedom, conformably with articles 6(2), 10, 43, 47 and 189. 3. Secondly, and within the four corners of the Energy Act itself, Parliament has spoken directly to the very situation that arose on 14 February 2025. Section 161 creates a bespoke procedure for the case in which the National Government, a County Government or any Government agency defaults on its electricity bills; the licensee *shall* report the billings to the Cabinet Secretary for the National Treasury, who shall in turn report them to Parliament for necessary appropriation. The provision is instructive in three respects. It recognises that government consumers are not ordinary consumers: their revenues are public funds, their expenditures pass through appropriation, and their premises host services on which the public depends. It channels the licensee’s remedy through the public-finance architecture rather than through self-help against public services. And it is expressed in mandatory terms, "shall report", while preserving, in its opening words, "any other remedies available", a phrase that naturally embraces recourse to the intergovernmental mechanisms and, ultimately, to the courts, but which cannot sensibly be read as licensing the one remedy that defeats the very purpose of the section: the paralysis of the defaulting government’s essential services. There is no evidence before me, none was deposed to by Ms. Kihara, and none was exhibited, that the 1st respondent reported the County’s outstanding billings to the Cabinet Secretary for the National Treasury before, or indeed after, reaching for the switch. 4. Thirdly, the 1st respondent’s complaint that the burden of initiating IGRA mechanisms lies on both parties, and that the County demonstrated no attempt to invoke them, is beside the point. The obligation under article 189(3) to make every reasonable effort to settle rests on each disputant. The County’s own failures, and its reported retaliation, which this court does not condone and which is the subject of the Environment and Land Court proceedings, may attract their own consequences in the appropriate forum. But one government organ’s default does not license the other’s. The party that escalated the dispute into the public realm by disconnection was the 1st respondent, and it is the constitutionality of *that* act which is before me. Nor is it any answer that a private citizen cannot activate the IGRA structures; the petitioner does not seek to activate them for himself; he seeks a declaration that the 1st respondent was bound to do so before disconnecting, and an order that the disputants now do so. Those are reliefs well within articles 23(3) and 165(3)(d)(iii) of the Constitution, the latter of which expressly vests this court with jurisdiction over any matter relating to the constitutional relationship between the levels of government. **(d) Conclusion on issue (iii)** 1. I accordingly find and hold that the dispute between the 1st respondent and the 1st interested party over electricity supplied to, and wayleave and rates claimed by, the County is an intergovernmental dispute within the contemplation of articles 6(2) and 189 of the Constitution; that the 1st respondent, as an agency of the national government discharging a shared Fourth Schedule function, was bound by articles 10, 47 and 189(3) and by sections 31, 33 and 34(2) of IGRA and section 161 of the Energy Act to pursue amicable settlement, the statutory reporting procedure and the alternative dispute resolution mechanisms before resorting to disconnection of the County’s offices and essential installations; and that the disconnection of 14 February 2025, effected without recourse to any of these mechanisms, was inconsistent with the Constitution and therefore invalid to that extent. Whether the same act also violated or threatened the fundamental rights pleaded is the subject of the next issue. But I emphasise, before leaving this one, what this holding does *not* decide: it does not absolve the County of its obligation to pay for electricity consumed; it does not extinguish the debt or any part of it; and it does not disable the 1st respondent from recovering what it is owed through section 161, through IGRA, through the pending suit, or through any lawful process. It decides only that the switch is not among the lawful instruments of intergovernmental debt collection where essential public services hang upon it. **The social and economic rights under article 43 and the other rights pleaded** **(a) the constitutional text and the architecture of obligation** 1. Article 43(1) of the Constitution provides that every person has the right — (a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; (b) to accessible and adequate housing, and to reasonable standards of sanitation; (c) to be free from hunger, and to have adequate food of acceptable quality; (d) to clean and safe water in adequate quantities; (e) to social security; and (f) to education. Article 43(2) adds, in absolute terms, that a person shall not be denied emergency medical treatment. 2. These rights do not stand alone. Article 19(2) declares that the purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. Article 20(1) provides that the Bill of Rights binds all State organs and all persons, a provision of both vertical and horizontal reach, as the Supreme Court confirmed in *William Musembi & 13 others v Moi Educational Centre Co. Ltd & 3 others*, SC Petition No. 2 of 2018, [2021] KESC. Article 21(1) makes it a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights; and article 21(2) obliges the State to take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under article 43. Article 26 protects the right to life, and article 28 the inherent dignity of every person. By articles 2(5) and 2(6), the general rules of international law and treaties ratified by Kenya, including the International Covenant on Economic, Social and Cultural Rights, whose articles 11 and 12 guarantee an adequate standard of living and the highest attainable standard of health, form part of the law of Kenya. 3. Two features of this architecture bear emphasis, because the 1st respondent’s submissions elide them. The first is the distinction, now well settled in socio-economic rights jurisprudence both here and abroad, between the *positive* dimension of these rights, that is, the duty to fulfil, which is progressive and resource-dependent under article 21(2), and their *negative* dimension, which is, the duty to respect, that is, to refrain from conduct that interferes with, destroys or diminishes the existing enjoyment of the right. Progressive realisation qualifies the former; it is no answer to a breach of the latter. As an illustration, a State organ that cannot yet build a hospital may plead resources; a State organ that switches off the hospital that exists may not. The Committee on Economic, Social and Cultural Rights has made the same point in General Comment No. 3 (1990), which treats deliberately retrogressive measures as requiring the most careful justification; in General Comment No. 14 (2000) on the right to health, which identifies as violations of the obligation to respect those State actions that interfere with the enjoyment of the right, and identifies the equitable functioning of health facilities as a core concern; and in General Comment No. 15 (2002) on the right to water, which condemns arbitrary and unjustified disconnection of water services. These instruments, as the Supreme Court held in *Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae)*, SC Petition No. 3 of 2018, [2021] KESC 34 (KLR), inform the interpretation of article 43 by dint of articles 2(5) and 2(6) and article 21(4). 4. The second feature is that article 22(1) protects rights not only against violation but against *threatened* violation. The Constitution does not require the patient to die on the operating table before the court may speak. Where a State agency threatens conduct whose natural and probable consequence is the deprivation of the rights to life, health or water, the court’s jurisdiction is engaged at the point of threat. This disposes of much of the 1st respondent’s complaint that the petitioner tendered no incident report or medical evidence from a Nairobi facility: the gravamen of the petition, so far as article 43 is concerned, is the threatened disconnection of Pumwani Maternity Hospital, the mortuaries, the fire stations and the night supply, threats deposed to on oath in the supporting affidavit and nowhere denied on oath by Ms. Kihara, whose affidavit denies that any disconnection "imperiled essential health facilities" but is conspicuously silent on the threats, together with an undisputed institutional history of actual disconnections of hospitals and water installations in Busia, Kisumu, Mombasa and Homa Bay. ***(b) The place of electricity within article 43*** 1. Electricity is not enumerated in article 43, and counsel for the petitioner rightly did not contend that the Constitution confers a free-standing right to electricity at large. His submission was subtler and, in my judgment, correct, that electricity is an *enabling* or *derivative* interest, an underlying determinant, in the language of General Comment No. 14, without which the enumerated rights to health care services, to clean and safe water in adequate quantities, to sanitation, and indeed to life itself in a modern hospital, cannot be enjoyed. A referral hospital without electricity is a building, not a health care service: its theatres, intensive care units, incubators, laboratories, cold-chain vaccine storage and mortuaries all run on power. A water utility without electricity cannot pump water. Article 14(2)(h) of CEDAW, ratified by Kenya in 1984 and therefore part of our law under article 2(6), expressly recognises electricity alongside water and sanitation as an element of adequate living conditions; and Sustainable Development Goal 7 reflects the international consensus that access to energy is a precondition of development and of the enjoyment of other rights. 2. This understanding is consonant with the jurisprudence of the comparative jurisdictions to which both counsel referred me, and to which the parties’ submissions invite extended consideration. **(c) The Kenyan jurisprudence on article 43** 1. Our courts began charting the content of article 43 almost as soon as the Constitution was promulgated. In *John Kabui Mwai & 3 others v Kenya National Examinations Council & 2 others* [2011] eKLR, the High Court acknowledged that the inclusion of socio-economic rights in the Constitution transformed them from aspirations into justiciable guarantees, while recognising that their positive implementation occurs in a context of scarce resources. In *Ibrahim Sangor Osman v Minister of State for Provincial Administration & Internal Security* [2011] eKLR, the court held that the forcible eviction of over a thousand people from their homes, without notice or alternative shelter, violated article 43 among other provisions, and awarded substantial compensation, an early and emphatic vindication of the negative obligation not to destroy existing enjoyment of socio-economic rights. 2. In *P.A.O. & 2 others v Attorney General* [2012] eKLR, the court held that the right to life, dignity and health of persons living with HIV took precedence over the intellectual-property and commercial interests advanced in support of the impugned provisions of the Anti-Counterfeit Act; where fundamental rights to life and health collide with economic and commercial claims, the former prevail. In *Mathew Okwanda v Minister of Health and Medical Services & 3 others* [2013] eKLR, Majanja J, drawing on General Comment No. 14, affirmed that article 43(1)(a) imposes obligations on the State which it must demonstrate, by evidence of measures taken, that it is discharging; and in *Luco Njagi & 21 others v Ministry of Health & 2 others* [2015] eKLR, the court engaged with the claims of renal patients to affordable dialysis, accepting the justiciability of the right while calibrating the positive obligation to available resources. The through-line of these authorities is precisely the distinction I have drawn: resource constraints temper the duty to fulfil; they do not excuse active interference. 3. The Supreme Court has now placed this jurisprudence on the firmest footing. In *Mitu-Bell* (supra), the Court corrected the Court of Appeal’s understanding of progressive realisation: the right under article 43 accrues to every individual, and progressive realisation places the burden on the State, where it pleads incapacity, to demonstrate that resources are lacking; it is not a licence for indefinite deferral, still less for destruction of what exists. The Court also affirmed the availability, under article 23(3), of structural interdicts and supervisory orders as appropriate reliefs in socio-economic rights litigation. And in *William Musembi* (supra), the Court held that the demolition of homes and a school by State and private actors violated the victims’ rights under articles 28 and 43 and attracted damages, reiterating that the obligation to *respect* the rights binds State organs immediately and fully. To these I would add this court’s own tradition, reflected in *Okiya Omtatah Okoiti & another v Kenya Power and Lighting Company Ltd & 4 others* [2020] KEHC 2508 (KLR), of subjecting the 1st respondent’s exercise of its statutory powers to constitutional discipline. **(d) The South African jurisprudence** 1. South Africa’s Constitution, like ours, entrenches justiciable socio-economic rights subject to progressive realisation within available resources, and the jurisprudence of its Constitutional Court has, unsurprisingly, been a lodestar for our courts. Four strands of that jurisprudence assist here. 2. First, *Soobramoney v Minister of Health, KwaZulu-Natal* 1998 (1) SA 765 (CC) and *Government of the Republic of South Africa v Grootboom* 2001 (1) SA 46 (CC) establish the standard of review for the *positive* dimension: the State must adopt and implement a reasonable programme, within its available resources, that does not ignore those in most desperate need; the courts will not dictate the content of policy, but will test its reasonableness. *Minister of Health v Treatment Action Campaign (No. 2)* 2002 (5) SA 721 (CC) demonstrates that where government itself erects unreasonable obstacles to access, there, the restriction of Nevirapine to pilot sites, the court may order their removal. *Mazibuko v City of Johannesburg* 2010 (4) SA 1 (CC) counsels judicial restraint in fixing the quantum of positive provision. These cases would matter greatly if the petitioner were demanding that the State supply free electricity; he is not, and the restraint they counsel is therefore not in issue. 3. Secondly, the *Grootboom* case itself, at paragraph 34, recognised that socio-economic rights carry a negative obligation upon the State and all other entities and persons to desist from preventing or impairing existing access to the right; the very obligation engaged by disconnection. 4. Thirdly, and most directly in point, is *Joseph & others v City of Johannesburg & others* 2010 (4) SA 55 (CC). Tenants of a Johannesburg building, themselves up to date with their payments, had their electricity disconnected without notice because their landlord had run up arrears of some R400,000 with the municipal utility. The Constitutional Court held, unanimously, that electricity is an important basic municipal service which local government is ordinarily obliged to provide; that the tenants received it as a matter of *public law* right, correlative to the constitutional and statutory duties of local government, and not merely as an incident of private contract; that the decision to disconnect was administrative action attracting procedural fairness; and that fairness required adequate pre-termination notice, at a minimum fourteen days, stating the date, the reason, and the place at which the disconnection could be challenged. A by-law purporting to authorise disconnection without notice was declared invalid. The Court observed that pre-termination engagement, far from impeding debt collection, might well have facilitated a joint endeavour to recover the arrears or to reach an alternative payment arrangement; an observation that reads as a commentary on the events of February 2025 in Nairobi, where it was precisely engagement, once belatedly convened, that resolved the standoff in days. 5. The parallel with the present case is close and instructive. In the *Joseph case*, the utility used the tenants, strangers to the debt, as leverage against the debtor landlord, and the court condemned the practice as both ineffective and unjust. Here, the 1st respondent used the residents of Nairobi; the patients of Pumwani, the bereaved awaiting their dead at the mortuaries, the traders under the street lights, the households awaiting fire services, as leverage against the County. They are strangers to the debt in every sense that matters, yet they were the ones who stood to bear its consequences. If procedural fairness and public-law duty protect the tenants of a single building in Johannesburg, they protect the population of a capital city. 6. Fourthly, the South African cases mark the limits of the principle, and I take care to mark them too. In *Rademan v Moqhaka Local Municipality* 2013 (4) SA 225 (CC), the Constitutional Court upheld a municipality’s entitlement to disconnect the electricity of a resident who deliberately withheld payment of her consolidated municipal account: a consumer cannot claim the service while repudiating the correlative duty to pay. Nothing in this judgment quarrels with that principle as regards ordinary consumers in an undisputed default, upon proper notice. The present case is distinguishable on three cumulative grounds: the "consumer" here is a government whose debts Parliament has routed through a bespoke appropriation procedure in section 161; the installations affected and threatened host essential services to the public at large, who are not the debtor; and the debt itself was embroiled in genuine cross-claims, the 2012 joint committee having demonstrated that, upon reconciliation, hundreds of millions flowed in *both* directions. *Occupiers of 51 Olivia Road v City of Johannesburg* 2008 (3) SA 208 (CC) supplies the final South African lesson that where State action will deprive people of the basic amenities of life, the Constitution requires *meaningful engagement* before the deed, not after it. Article 189(3) of our Constitution is, in the intergovernmental sphere, our textual embodiment of the same idea. **(e) The Indian jurisprudence** 1. India’s Constitution contains no enumerated, justiciable socio-economic rights of the Kenyan or South African type; its Directive Principles are non-justiciable. Yet the Supreme Court of India, through its expansive interpretation of the article 21 right to life, has built a body of doctrine that anticipates much of what our article 43 makes explicit. In *Francis Coralie Mullin v Administrator, Union Territory of Delhi* (1981) 1 SCC 608, Bhagwati J held that the right to life is not confined to animal existence but embraces the right to live with human dignity and all that goes along with it, including adequate nutrition, clothing, shelter and facilities for expression. *Olga Tellis v Bombay Municipal Corporation* (1985) 3 SCC 545 located the right to livelihood within the right to life. *Chameli Singh v State of U.P.* (1996) 2 SCC 549 held that the right to shelter includes adequate living space and civic amenities, the court expressly enumerating electricity among them. 2. On health, *Parmanand Katara v Union of India* (1989) 4 SCC 286 held that the preservation of life is of paramount importance and that every doctor, whether at a government hospital or otherwise, has an obligation to extend services to protect life; and *Paschim Banga Khet Mazdoor Samity v State of West Bengal* (1996) 4 SCC 37 held that the failure of government hospitals to provide timely emergency treatment violates article 21, and that financial constraints cannot justify the denial of emergency care, a holding whose Kenyan analogue is the absolute terms of our article 43(2). More recently, in *Dilip (Dead) through LRs v Satish & others*, Criminal Appeal No. 810 of 2022, the Supreme Court reiterated, as the Delhi High Court noted in *Sudharshan Kumar Sharma* (supra), that electricity is a basic amenity of which a person cannot be deprived. The Indian regulatory practice of classifying hospitals and public institutions as a distinct tariff category, upheld in *Association of Hospitals v Maharashtra Electricity Regulatory Commission* and traceable to *Association of Industrial Electricity Users v State of A.P.*, proceeds from the same premise: institutions upon which life and health depend are not ordinary commercial consumers, and the law may not treat them as such. 3. The instruction of the Indian jurisprudence for this case is this: even *without* a textual article 43, the courts of the world’s largest democracy have held that the State may not, consistently with the right to life, conduct itself in a manner that strips people of the basic amenities, emergency care, shelter, electricity, on which dignified life depends. Our Constitution, which enacted article 43 precisely to place these guarantees beyond doubt, can demand no less of a State agency than India’s demands through interpretation alone. ***(f) Other Commonwealth jurisdictions and international standards*** 1. Elsewhere in the Commonwealth the same themes recur. In Uganda, the Constitutional Court in *Centre for Health, Human Rights and Development (CEHURD) & others v Attorney General*, Constitutional Petition No. 16 of 2011 (2021), following the direction of the Supreme Court, held that the government’s omissions in the provision of basic maternal health services violated the constitutional rights to health and life of expectant mothers, confirming that health-rights claims against government are justiciable in East Africa’s shared constitutional tradition, and lending particular resonance to the threat, in this case, against a *maternity* hospital. In the United Kingdom, the House of Lords in *R (Limbuela) v Secretary of State for the Home Department* [2005] UKHL 66 held that where the State by its own positive action reduces persons to destitution, denying them the most basic necessities of life, it crosses the threshold of inhuman and degrading treatment; the case stands for the distinction, central to this judgment, between a failure to provide and an act that deprives. And in Australia, as the petitioner’s submissions detailed, the National Energy Retail Rules (rr. 124A–124D) flatly prohibit disconnection of premises at which life-support equipment is in use, arrears notwithstanding, while the water-industry regulations restrict disconnection of water to a minimum flow and forbid it altogether where critical health needs are notified. These are legislative rather than judicial materials, but they evidence a settled Commonwealth consensus that where life and health ride on the wire or the pipe, the supplier’s commercial remedies stop short of the switch and the valve. 2. The international standards point the same way. General Comment No. 15 of the CESCR condemns disconnection of water services as a violation of the obligation to respect where effected without regard to the affected persons; General Comment No. 14 identifies interference with health facilities as a violation of the duty to respect the right to health; and the ILO’s essential-services doctrine, domesticated in section 81 and the Fourth Schedule of our Labour Relations Act, which lists water supply services, hospital services, fire services and local government authorities as services whose interruption would endanger the life or health of the population, supplies a legislative measure of which services Parliament itself regards as too vital to interrupt. The petitioner’s syllogism on this point is, with respect, compelling: if the law forbids workers to interrupt these services by strike because lives would be endangered, it can scarcely be lawful for a State-owned monopoly to interrupt them by disconnection for the same services’ unpaid bills. The danger to life does not vary with the identity of the hand on the switch. **(g) Application to the facts** Applying these principles to the record, I make the following findings. 1. First, the disconnection of 14 February 2025 of the County’s offices was established and is admitted. It interrupted the delivery of county services to the public including such services as licensing, permits, payments, social services, for the days it endured. That interruption engaged the public’s interests under articles 10, 43, 46 and 47, but on the evidence before me its consequences, mercifully, did not extend to a demonstrated deprivation of health care or water in Nairobi before power was restored through mediation. To that extent, the 1st respondent’s complaint about the want of medical evidence has force, and I decline to find an accomplished violation of article 43 arising from the events of 14 February 2025 alone. 2. Secondly, however, the petitioner deposed on oath, and the 1st respondent did not deny on oath, that the 1st respondent threatened to extend the disconnection to Pumwani Maternity Hospital, to mortuaries, to fire stations and to the night power on which the city’s sanitation operations depend. Those threats, made against the background of an admitted, decade-long institutional practice of disconnecting county hospitals and water installations, for instance, Busia Referral Hospital, whose theatre and nursery were crippled and whose accident victims had to be ferried to a private facility; Kisumu District Hospital in 2014; Coast General Teaching and Referral Hospital in March 2023; Homa Bay’s water intake, were neither idle nor speculative. A threat by a monopoly supplier, with a proven record of carrying such threats out, to disconnect a maternity hospital is a threatened violation of the rights to life (article 26), to dignity (article 28), to the highest attainable standard of health and to emergency medical treatment (articles 43(1)(a) and 43(2)), and, as regards the water and sanitation installations, to clean and safe water and reasonable standards of sanitation (articles 43(1)(b) and (d)), within the meaning of article 22(1). The historical disconnections of hospitals in Busia, Kisumu and Mombasa, which the 1st respondent dismissed as irrelevant rather than denied, were themselves, on the principles set out above, violations of the negative obligation to respect the article 43 rights of the patients and communities served by those facilities; they are before me not for individual redress, none is claimed, but as proof that the threat to Nairobi was real and that, short of this Honourable Court’s intervention, its repetition somewhere in the Republic is a matter of time. 3. Thirdly, as to article 47 and fair administrative action, the decision of a State-controlled monopoly utility to disconnect power to the offices and installations of a county government is administrative action of the most public character, likely to affect the legal rights and interests of the general public, and it therefore attracted not only the general guarantee of lawful, reasonable and procedurally fair action under article 47(1) but the specific machinery of section 5 of the Fair Administrative Action Act; public notice of the proposed action, an opportunity for representations, and reasons. Ms. Kihara’s affidavit asserts, in general terms, that disconnections occur only after notices and demand letters; but no notice, demand letter, or public notification concerning the 14 February 2025 disconnection was exhibited, and the supporting affidavit’s averment that the disconnection was effected without notice stands effectively uncontroverted by evidence. Consistently with the South African *Joseph case*, I hold that the public whose services were to be interrupted were entitled to adequate prior notice, and that its absence rendered the disconnection procedurally unfair and in breach of article 47(1) and section 5 of the Fair Administrative Action Act, in addition to the breach of article 189(3) already found. 4. Fourthly, the claims under articles 35 and 46 fail for want of proof. Article 35 requires, at minimum, a request for information and a denial; none is pleaded or proved. Article 46 adds little, on these facts, to what articles 43 and 47 secure, and the petitioner did not demonstrate a distinct consumer-rights violation with the precision the authorities require. Those limbs of the petition are dismissed. 5. Fifthly, I address squarely the 1st respondent’s legitimate anxieties, because a judgment on socio-economic rights that ignores the economics of the grid would be a disservice to the very rights it vindicates. The 1st respondent purchases power in advance under binding agreements, services heavy debt, and must be paid if it is to keep the national lights on; a culture of governmental default, insulated from consequence, would itself ultimately imperil the article 43 rights of every Kenyan who depends on a solvent utility. Nothing in this judgment creates a right to free electricity, a moratorium on payment, or an immunity for county governments. What it creates, or rather, what it recognises the Constitution and section 161 as having created, is a *pathway*, viz. report the debt to the National Treasury for appropriation; engage, consult and negotiate under article 189(3) and sections 31 and 33 of IGRA; declare a formal dispute and invoke the Summit or Council under section 34 if engagement fails; sue if all else fails. The one route closed is the one that holds the sick, the bereaved and the unlit streets hostage to a balance sheet. As the Constitutional Court of South Africa observed in the *Joseph case*, engagement before termination may well serve the creditor better than the switch: the events of February 2025, in which mediation achieved in days what disconnection had only inflamed, prove the point on these very facts. **Reliefs and costs** 1. Article 23(3) empowers this court to grant appropriate relief, including declarations of rights, injunctions, conservatory orders and orders of judicial review; and the *Mitu-Bell case* confirms that the menu extends, in a proper case, to structural and supervisory orders. The reliefs must, however, be tailored to the findings, and two features of the record shape that tailoring. 2. The first is that prayers (a) and (b) which are the quashing of the disconnection and the restoration of supply, have been overtaken by events. Power was restored following the mediation of February 2025, and no disconnection subsists. A court does not act in vain, and I decline those prayers as moot. But the mootness of the coercive prayers does not carry the declaratory prayers with it. The impugned conduct is, on the undisputed record, recurrent; Busia, Kisumu, Mombasa, Homa Bay, and now Nairobi, and of a character that is capable of repetition against any of the forty-seven counties, yet likely, each time, to be resolved by *ad hoc* intervention before litigation can run its course, thereby evading review. The declaratory jurisdiction exists precisely to settle, for the future, questions of public importance of this kind, and I exercise it. 3. The second is the need for restraint and precision. The petitioner’s motion sought, at one point, orders embracing all forty-seven counties and restraining the interested parties as well. A declaration of constitutional principle necessarily speaks generally; but coercive and structural orders must be anchored to the parties and the dispute before the court, and must not pre-empt the Environment and Land Court’s adjudication of the underlying accounts, nor the intergovernmental mechanisms themselves. The orders that follow are framed accordingly. 4. On costs, the ordinary rule is that costs follow the event; but this is public-interest litigation properly so called, brought by a citizen who sought nothing for himself, which has clarified a question of genuine constitutional importance, and in which success has been divided, the petitioner failing on articles 35 and 46 and on the accomplished-violation limb of article 43, and succeeding on articles 47 and 189 and on the threatened-violation limb. In the exercise of the discretion under section 27 of the Civil Procedure Act, and consistently with the practice of this court in public-interest matters, I order that each party bears its own costs. **Disposition** 1. In the ultimate, the petition partially succeeds, and I make the following declarations and orders: (1) A declaration be and is hereby issued that the dispute between the 1st respondent and the 1st interested party concerning electricity charges, wayleave charges, land rates and related mutual claims is an intergovernmental dispute within the contemplation of articles 6(2) and 189 of the Constitution and the Intergovernmental Relations Act, cap. 265F. (2) A declaration be and is hereby issued that the 1st respondent’s disconnection of electricity supply to the offices and installations of the 1st interested party on 14 February 2025, effected without prior recourse to the mechanisms under article 189(3) of the Constitution and sections 31, 33 and 34 of the Intergovernmental Relations Act, cap. 265 F without invoking the reporting procedure under section 161 of the Energy Act, cap. 314, and without adequate prior public notice under section 5 of the Fair Administrative Action Act, cap. 7L was unlawful, procedurally unfair and inconsistent with articles 10, 47 and 189(3) of the Constitution, and to that extent invalid. (3) A declaration be and is hereby issued that the disconnection, or threatened disconnection, by the 1st respondent of electricity supply to essential public installations of a county government, including hospitals and other health facilities, water and sewerage pumping and treatment installations, fire stations, mortuaries and street lighting, on account of a billing or other financial dispute with that county government, without first exhausting the mechanisms aforesaid, constitutes a threatened violation of the rights guaranteed by articles 26, 28, 43(1)(a), 43(1)(b), 43(1)(d) and 43(2) of the Constitution. (4) An order be and is hereby issued directing that the 1st respondent shall not, on account of any billing or financial dispute with the 1st interested party or any other county government, disconnect or threaten to disconnect electricity supply to the essential public installations described in declaration (3) above unless and until it has (i) reported the outstanding billings to the Cabinet Secretary for the National Treasury pursuant to section 161 of the Energy Act, cap. 314; (ii) pursued the consultation, negotiation and alternative dispute resolution mechanisms under article 189(3) of the Constitution and sections 31 to 35 of the Intergovernmental Relations Act cap. 265F; and (iii) given not less than thirty days’ written notice to the county government concerned and public notice in accordance with section 5 of the Fair Administrative Action Act. For the avoidance of doubt, this order does not restrain the 1st respondent from pursuing recovery of any sums due to it by way of the said mechanisms or by action in a court of competent jurisdiction, and does not affect its dealings with consumers other than governments and government agencies. (5) An order be and is hereby issued directing the 1st respondent and the 1st interested party, with the facilitation of the 2nd interested party and the Intergovernmental Relations Technical Committee, to refer their outstanding mutual claims (if any) to the alternative dispute resolution mechanisms established under sections 31 to 35 of the Intergovernmental Relations Act within sixty (60) days of the date of this judgment, without prejudice to the proceedings in Milimani ELCEPPET/E009/2025, which remain unaffected by this judgment. (6) The prayers for orders quashing the disconnection of 14 February 2025 and for restoration of supply are declined as having been overtaken by events; and the claims founded on articles 35 and 46 of the Constitution are dismissed. (8) Each party shall bear its own costs. **74.** It is so ordered. **Dated, signed and published on 14 August 2026** Ngaah Jairus **JUDGE**