[2020] KEHC 9607 (KLR)
The court found that, while the Energy Act, 2019 vests jurisdiction for disputes between licensees and third parties in the Energy and Petroleum Tribunal, the Tribunal had not yet been constituted at the time of the application. The court agreed with the plaintiff that it would be remiss to deny interim protection...
Source-derived case information.
- Citation
- [2020] KEHC 9607 (KLR)
- Parties
- Plaintiff: Shalimar Limited; Defendant: Kenya Power & Lighting Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit E123 of 2019
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection and Interim Injunction Extension
- Outcome
- Interim injunction extended; matter to be mentioned for status of Tribunal; liberty to apply for transfer; no costs on preliminary objection.
- Judges
- MM Kasango
- Legal Topics
- Jurisdiction of Tribunals, Energy Sector Disputes, Interim Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shalimar Limited
Plaintiff
Kenya Power & Lighting Company Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection and Interim Injunction Extension
Legal Issues
- 1 Whether the High Court has jurisdiction to hear disputes between a licensee and a third party under the Energy Act, 2019.
- 2 Whether the matter should be referred to the Energy and Petroleum Tribunal as provided by statute.
- 3 Whether interim injunctive relief should be maintained pending constitution of the Tribunal.
Ratio Decidendi
The court found that, while the Energy Act, 2019 vests jurisdiction for disputes between licensees and third parties in the Energy and Petroleum Tribunal, the Tribunal had not yet been constituted at the time of the application. The court agreed with the plaintiff that it would be remiss to deny interim protection in the absence of an operational Tribunal. Therefore, the interim injunction restraining the defendant from disconnecting electricity supply was extended until the Tribunal is constituted, after which the matter may be transferred to the appropriate forum. The court emphasized the need to follow statutory procedures but recognized the necessity of temporary judicial intervention...
Court Disposition
Interim injunction extended; matter to be mentioned for status of Tribunal; liberty to apply for transfer; no costs on preliminary objection.
Orders
- The interim injunction granted to the plaintiff on 16th May 2019 is extended up to 28th May 2020.
- This matter shall be mentioned on 28th May 2020 for the parties to inform the court whether the Energy and Petroleum Tribunal has been constituted.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
CIVIL SUIT NO. E 123 OF 2019
SHALIMAR LIMITED..................................................................PLAINTIFF
-VERSUS-
KENYA POWER & LIGHTING COMPANY LIMITED........DEFENDANT
RULING
1. Shalimar Limited (Shalimar) filed this case against Kenya Power & Lighting Company Limited (KP&L). Shalimar seeks, by the claim, injunction to restrain KP&L from disconnecting its electricity supply, on a development on LR No. 209/2158. Shalimar filed a Notice of Motion dated 7th May 2019 and this court granted it interim injunction.
2. KP&L filed a preliminary objection which is to the effect that the Notice of Motion, by Shalimar failed to comply with the mandatory provisions of the law namely section 36 (3) of The Energy Act, 2019 as read with section 224 (2) (e).
3. KP&L submitted that The Energy Act (the Act) was assented to on 12th March 2019 and came into force on 28th March 2019. Under Section 9 of the Act a number of Institutions were establish amongst which is The Energy and Petroleum Regulatory Authority (the Authority).
4. It was further submitted that jurisdiction for entertaining disputes between KP&L and third parties is vested in the Energy and Petroleum Tribunal. This indeed is what section 36 of the Act provides, it is stated:
“ 36. 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, specific performance.
6) The Tribunal shall hear and determine matters referred to it expeditiously.”
5. I am inclined to concur with the finding by Justice R.E. Ougo in the case Joshua Ochana Kiyondi v Kenya Power & Lighting Co. Ltd (2019) eKLR as follows:
10. The question of whether or not there had been an interference with the meter was clearly an issue which should have been referred to the Commission for determination by virtue of section 59 (3) and section 61 (3) (c) of the Act. The Act provides a specific procedure for redress of grievances thereby ousting the court’s jurisdiction. The Court of Appeal in Speaker of the National Assembly v James Njenga Karume Civil Application No Nai 92 Of 1992 (Nai 40/92 Ur) [1992] eKLR held as follows:
“In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
6. I have noted that the Shalimar’s learned advocate placed before court a Kenya gazette Notice No 11259 of 26th November 2019 which clearly shows that the recruitment of the members of the Energy and Petroleum Tribunal is still ongoing. It is not yet constituted. I am in agreement with the Shalimar’s submission that I would be remiss if I failed to grant Shalimar some measure of protection until the Energy and Petroleum Tribunal is constituted.
7. Accordingly in respect to the preliminary objection dated 15th May 2019 I grant the following orders:
(a) The interim injunction granted to the plaintiff on 16th May 2019 is extended upto 28th May 2020
(b) This matter shall be mentioned on 28th May 2020 for the parties to inform the court whether the Energy and Petroleum Tribunal has been constituted.
(c) Either party is at liberty to apply for this matter to be transferred to the Energy and Petroleum Tribunal.
(d) There shall be no costs in respect to the preliminary objection dated 15th May 2019.
DATED, SIGNED and DELIVERED at NAIROBI this 30th day of APRIL, 2020.
MARY KASANGO
JUDGE
ORDER
In view of the measures restricting court operations due to the COVID-19 pandemic and in light of the Gazette Notice No 3137 of 17th April 2020 and further parties having been notified of the virtual delivery of this decision, this decision is hereby virtually delivered this 30th day of April, 2020.
MARY KASANGO
JUDGE