[2023] KEHC 19751 (KLR)

Umoja Rubber Products Limited v Kenya Power & Lighting Company Limited (Civil Appeal 175 of 2019) [2023] KEHC 19751 (KLR) (5 July 2023) (Judgment)

Neutral citation: [2023] KEHC 19751 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 175 of 2019

DKN Magare, J

July 5, 2023

Between

Umoja Rubber Products Limited

Appellant

and

Kenya Power & Lighting Company Limited

Respondent

(Arisng from the decision of Hon E. Muchoki, in Mombasa SRMC C1727 of 2018 given on 6/8/2019. )

Judgment

1. The appeal is a straight forward one. The appeal arose from the decision of Hon E. Muchoki, in Mombasa SRMC C1727 of 2018 given on 6/8/2019. The record of Appeal was filed on 21/9/2022 and I gave directions for hearing of the appeal.

2. It is an appeal from the decision of the lower court declining jurisdiction. This appeal is unique in that parties were busy arguing on repealed law and convinced the court to strike out pleading on basis of repealed law.

3. Given the nature of the ruling, the court’s powers in respect hereto are immense. Contrary to the normal situation where the court defers to the finding of fact as held in the case of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, this court is dealing with the understanding on the points of law involved. In that case the court of Appeal stated as doth: -“This court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."

4. The Court is not involved in the finding of fact as the suit was heard on a preliminary objection. In hearing a preliminary objection, this court and the court below have the same jurisdiction. They proceed on an understanding that what is pleaded in the plaint is true. It is what the English common law used to call a demurrer. The locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd V. West End Distributors Ltd [1969] E.A. 696, made this pertinent observation. It said: -“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way preliminary objection. The improper raising of points of preliminary objection does nothing but unnecessarily increases costs and, on occasion, confuses issues. This improper practice should stop".

5. In a Tanzanian case of Hammers Incorporation Co. Ltd v The Board Of Trustees Of The Cashewnut Industry Development Trust Fund, where the Court of Appeal, (Rutakangwa, N. P. Kimaro and S. S. Kadage JJA), sitting in Dar es salaam in their decision given on 17/9/2015 regretted that the practice of raising preliminary objection that was frowned upon by the court of appeal in kampala in the Mukisa biscuit case(supra) still persists. They stated as doth: -“It was hoping against hope. We believe that had that Court survived to this day it would have issued a sterner warning. This is because the "improper practice" never stopped. Neither did it ebb away. On the contrary, it is on the increase. This forced the Full Bench of this Court inKarata Ernest & Others V The Attorney General, Civil Revision No. 10 of 2010 (unreported) to mildly urge all parties in judicial proceedings to pay heed to what was aptly pronounced in the Mukisa Biscuit Case (supra). The late call appears to be falling on deaf ears as this ruling will demonstrate.”

6. In the case of Martha Akinyi Migwambo v Susan Ongoro Ogenda [2022] eKLR, justice Kiarie Waweru Kiarie, summarized the preliminary objection as seen from two of the judges in Mukisa Biscuit Manufacturing Co. Ltd. (supra): - nicely“A preliminary objection must be on a point of law. The Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd[1969) EA 696 at page 700 paragraphs D-F Law JA as he then was had this to say:....A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.At page701 paragraph B-C Sir Charles Newbold, P. added the following:A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion....”

7. A Tanzania Court of Appeal sitting in Dar es Salaam, in Karata Ernest & Others v Attorney General (Civil Revision No. 10 of 2020) [2010] TZCA 30 (29 December 2010), (Luanda, J.A., Ramadhani, C.J., Rutakangwa, JJA), put the issue of preliminary objections in a more succinct manner: -“At the outset we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. It only "consists o f a point of law which has been pleaded, or which arises by dear implication out of the pleading obvious examples include: objection to the jurisdiction of the court; a plea of limitation; when the court has been wrongly moved either by non-citation or wrong citation of the enabling provisions of the law; where an appeal is lodged when there is no right of appeal; where an appeal is instituted without a valid notice of appeal or without leave or a certificate where one is statutorily required; where the appeal is supported by a patently incurably defective copy of the decree appealed from; etc. All these are clear pure points of law. All the same, where a taken point of objection is premised on issues of mixed facts and law that point does not deserve consideration at all as a preliminary point of objection. It ought to be argued in the "normal manner" when deliberating on the merits or otherwise of the concerned legal proceedings.

8. Justice prof J.B. Ojwang J (as he then was) succinctly addressed the issue of preliminary objection in the case of Oraro v Mbaja [2005] eKLR:“I think the principle is abundantly clear. A preliminary objection as correctly understood is now well settled. It is identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.”

9. It is therefore my view that a preliminary objection must be based on current law, and be factual in its constitution. It cannot be based on disputed facts or fats requiring further enquiry. In determining a preliminary objection therefore only 3 documents are required in addition to the constitution. The impugned law, the plaint and preliminary objection. If you have to refer to the defence, then the preliminary objection is untenable

Background 10. In this matter the defendant raised a preliminary objection dated 4/2/2019 in the following term: -a.The defendant shall raise a preliminary objection on the grounds that pursuant to Article 159(2), sections 2,5,6,63, 108,110(1) of the energy act 2006, rule 2 and 4 of the energy complaint and dispute resolution rules ,2012, this honourable court lacks jurisdiction to entertain this matter and the same should be summarily struck out with costs.

11. The court heard the preliminary objection through written submissions and made its ruling on 6/8/2019. The court struck out the suit with costs.

Respondent’s submissions 12. The respondent relied on the decision of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, where the supreme court stated as doth: -“(68) A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”

13. They relied on the decision of Speaker of the National Assembly v Karume (Civil Application 92 of 1992) [1992] KECA 42 (KLR) (29 May 1992) (Ruling) where the court of appeal stated as doth: -“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. We observe without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions.”

14. The respondent also relied on the decision of James Kibugi Githinji v Kenya Power & Lighting Company Limited [2016] eKLR, where justice A. Mbogholi Msagha, as then he was stated as doth: -“The dispute between the parties herein is related to charges. Going by paragraph 6 of the plaint cited above, the offending action by the defendant which the plaintiff has complained of was before the plaintiff came to court. By then it had not been referred to the Commission. It follows therefore that by the provisions of sub section (4) above, this court is divested of jurisdiction which is clearly conferred upon the Commission.”

15. The decision above is not in all fours with the case herein. There are no charges nor are there issues of disconnection. The same applies to the case Royal Reserve Management Company Ltd v Kenya Power & Lighting Company Ltd [2017] eKLR, where the court stated as doth: -“19. Parliament in its wisdom set up the ERC to divest mainstream courts of some off the cases it would hear relating to the provisions of the Energy Act. The preliminary objection raised is grounded on the provisions of section 61(3) of the Energy Act, 2006. The said section provides as follows:-“If any dispute arises as to –(a)any charges; or(b)The application of any deposit; or(c)any illegal or improper use of electrical energy; or(d)any alleged defects in any apparatus or protective devices; or(e)any unsuitable apparatus or protective devices;it shall be referred to the commission.” (emphasis added).20. Section 61(4) thereof provides that:-“Where any dispute referred to in sub section (3) has been referred to the Commission, or has otherwise been taken to court before a notice of disconnection has been given by the licence, the licence shall not exercise any of the powers conferred by this section until final determination of the dispute …” (emphasis added).21. Section 6 of the Energy Act provides that the powers of the Commission include interalia, investigating complaints or disputes between parties with grievances over any matter required under the Energy Act.”

16. Finally, in the case of Alice Mweru Ngai v Kenya Power & Lighting Co. Ltd [2015] eKLR, the party therein was seeking compensation for lawful entry into her land. The question was settlement of compensation.

17. In this appeal they have added the authority of Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR, where the court stated as doth: -“We see this as the crux of the matter in this and similar cases. It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”

Appellant’s submissions 18. The appellant on the other hand referred to the decision of the Indian court in his Highness The Gaekwar Sarkar of Baroda And Central India Railways v Kachrabhai Kashturchand 1903) XXVI ILR to the effect that no statute confers or clothes anybody to act negligently.

19. They further refer to the authority of Modern Holdings (EA) Limited v Kenya Ports Authority [2020] eKLR where the supreme court held as doth:-“57. In concluding on this issue, it is trite that the question of jurisdiction, can be raised at any stage of the proceedings but we have shown that in the instant case, the Court of Appeal fell into error when it closed its eyes to an express constitutional jurisdiction and relied on another, conferred by a statute (as read with a general constitutional provision) to dismiss the appeal before it. Neither Article 159(2)(c), on which Section 62 is anchored nor Article 165(3)(a) should be read so as to supersede the other and we have shown why. They are to be read together and understood to confer concurrent jurisdiction. To that extent, we agree with the appellant on the application of Article 165(3)(a) to this case while also agreeing with the respondent that Section 62 is not unconstitutional.”

20. Threeways Shipping Services (K) Ltd v Kenya Ports Authority [2012] eKLR that“the law today is that the High Court has unlimited jurisdiction in all causes save in matters reserved by the Constitution itself to the Supreme Court, or to certain specialized courts. Consequently, the contention that, in the suit herein, S.62 of the Kenya Ports Authority Act has ousted the High Court’s jurisdiction is untenable”.

21. In the related appeal of Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the court of appeal stated as doth: -“31. The appellant submitted Section 62 of the Act ousts the jurisdiction of the High Court. Section 62 of the Act should not be interpreted to impede access to justice by denial of access to a court of law. Further, the provisions of Section 62 of the Act is not aimed at shielding the Authority from any and all liability particularly liability arising from negligence. Section 62 should be interpreted and applied in a manner that enhances efficiency in Port management and expeditious resolution of disputes between the Authority and its customers. The Section is not a carte blanche to escape liability from common law duty of care. In our considered view, Section 62 (2) (a) and (b) of the KPA Act establishes an exception whereby a person is eligible to compensation if that person was entitled to compensation otherwise than through the provisions of the Act. The legal question is what forum would determine the loss or damage suffered otherwise than through the provisions of the Kenya Ports Authority Act? The answer to this question perforce incorporates negligence as a cause of action that is not covered by Section 62 of the KPA Act.Convinced that Section 22 of the KPA Act impose liability for mis-delivery of goods and satisfied that Section 62(2)(a) and (b) of the KPA Act creates a negligence exception, we find the learned judge did not err in his determination that the High Court had jurisdiction to entertain, hear and determine the respondent’s claim which is founded on negligence and want of care on the part of the appellant and or its employees.

Analysis 22. It is my understanding that jurisdiction is everything. The court is bound to take jurisdiction where it has and down its tools where it does not have jurisdiction. My senior brother Nyarangi JA, as then he was, immortalised these words, in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR as follows: -“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”

23. What was the claim before the court and what was the authority thereof. In the plaint dated29/8/2018, the Appellant was seeking special damages of Ksh. 329,546. Loss adjustor’s fees of Ksh 31,320 totalling to 360,866. The claim had been field through APA insurance for the right of subrogation.

24. The first tragedy was that the suit was struck on basis of repealed law. By dint of section 224 of the Energy Act 2019, which came into force on 28/3/2019 repealed the Energy Act 2006. The sections referred to are all repealed. It is the duty of the court to know the law. A suit cannot be struck down on basis of repealed law.

25. The appellant filed a 9-paragraph memorandum of appeal. It is repetitive and long winded. It should be concise. Under order 42 rule 1 of the Civil Procedure Rules, a memorandum of appeal should not be argumentative. The said provision states as doth: -“Form of appeal(1)Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.(2)The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.”

26. The court of Appeal had this to say in regard to rule 86 (which is pari mateira with order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”

27. Further in Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the court of appeal observed that: -“Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, this Court stated:“The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.”

28. The memorandum of appeal raises only one issue, that is,“The court erred in finding that it had no jurisdiction to hear and determine the case before him.”

29. The rest of the issues are ancillary, repetitive, prolixious and a waste of judicial time. The question this court will have to deal with is whether the magistrate’s court had jurisdiction to hear and determine this dispute. This is the only issue addressed in submissions before the court below and before this court.

30. In the defence filed, the defendant denied negligence on their part and blamed the plaintiff for the loss that occurred. What I understand is that there is dispute whether the loss was caused by electric fault on part of the respondent or on part of the Appellant. The respondent also stated that they had no contractual obligation to install protective devises. There is no agreement on the actual facts forming the subject matter of the claim.

31. Further, judicial authority is vested in the court. Article 1 (3) of the constitution states as doth: -“(3). Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitutiona.Parliament and the legislative assemblies in the county governments;b.the national executive and the executive structures in the county governments; andc.the Judiciary and independent tribunals.”

32. The judicature act and the Magistrates Court Act gives the lower jurisdiction over civil matters. However, there are claw backs in certain other acts. Section 9 of the Energy Act 2019 establishes the Energy and Petroleum Regulatory Authority.

33. The long title of the repealed act, Energy Act ,2006 was “An Act of Parliament to amend and consolidate the law relating to energy, to provide for the establishment, powers and functions of the Energy Regulatory Commission and the Rural Electrification Authority, and for connected purposes.”

34. The long title of the Energy Act 2019 is “an Act of Parliament to consolidate the laws relating to energy, to provide for National and County Government functions in relation to energy, to provide for the establishment, powers and functions of the energy sector entities; promotion of renewable energy; exploration, recovery and commercial utilization of geothermal energy; regulation of midstream and downstream petroleum and coal activities; regulation, production, supply and use of electricity and other energy forms; and for connected purposes.”

35. Dispute resolution related to negligence is not among the disputes the Energy and Petroleum Regulatory Authority is vested with. The right to appear in court is an inalienable right. It cannot be taken away by inference. Any act prohibiting the court from doing a certain act shall say so expressly. Article 24(1) is more explicit in that respect. It provides as doth: -“1. A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, includinga.the nature of the right or fundamental freedom;b.the importance of the purpose of the limitation;c.the nature and extent of the limitation;d.the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.”

36. From the nature of dispute, the parties involved in Energy and Petroleum Regulatory Authority are the entities in that field. It is a highly specialized field. Individual consumers are protected as a group. The Respondent, under the new act is the user of energy. It is supplied with energy to connect its customers.

37. The Act does not envisage, the end of the food chain, where small retailers are to be before the tribunal. the tribunal has no capacity to handle disputes of the nature that arise on a day to day.

38. The courts including the court of appeal have dealt with the issue, even during the regime the Electric Power Act, 1997 (No. 11 of 1997. This was repealed by the energy act 2006. The later was repealed by the Energy act, 2019. The energy and petroleum authority is not a tribunal envisaged under Article 1(3) of the constitution. It has no judicial function.

39. It cannot purport to hear disputes on subrogation and the negligence dispute. The act deals with the energy entities that have the means and wherewithal to travel to Nairobi to deal with the upstream and middle stream energy issues including downstream issues. Peripheral issues including positioning of poles, removal of poles loses due to adulterated fuel, faulty power lines and such minors issues shall remain within the province of this court and the magistrates court.

40. In the case of Robai Kadili Agufa & another v Kenya Power & Lighting Co Ltd [2015] eKLR, the court, E.C. MWITA stated as doth: -“On the question of jurisdiction, counsel cited a decision of the Court of Appeal in the case of Kenya Power and Lighting Company Ltd v Kiprino Kosgei Civil Appeal No.333 of 2005 (Eldoret), to show that the court has the necessary jurisdiction to deal with the dispute before it. He further submitted that the applicants are ready and willing to pay for electricity on pre-paid or postpaid basis during the pendency of this appeal from the date of re-connection.

41. In James Mwaura Ndung’u v Kenya Power and Lighting Co. Ltd [2016] eKLR, the court was of the view that the disputes related to certain disputes should be referred to the commission (now authority) the court, justice Dr Sergon stated as doth: -“6. It was also argued that the Electric Power Act stood repealed as of 7th July 2007, therefore the suit which was dismissed was filed under the regime of the Energy Act Cap 314 and not the repealed Electric Power Act no. 11 of 1997. Section 61(3), states that when supply of electrical energy may be refused or discontinued: if any dispute arises as toa.Any charges orb.The application of and deposit,c.Any illegal improper use of electrical energy ord.Any illegal defects in any apparatus or protective devices ore.Any unsuitable apparatus or protective devices, it shall be referred to the commission.

42. That case turned on its own decision. The law which is binding on this court and the court below is set of in Kenya Power and Lighting Company Ltd v joseph Kiprono Kosgei Civil Appeal No.333 of 2005.

43. The nature of the case filed by the plaintiff does not deal with metering, disconnection or supply. It is a dispute in negligence. Whether the case has merit by itself, it is the court below to decide.

44. In Eldoret White Castle Motel Limited v Kenya Power and Lighting Company Ltd [2010] eKLR, the court of appeal was of the view that matters outside the metering are outside the remit of the tribunal. The court of Appeal stated as follows: -“The only issue before us is one of jurisdiction. Gacheche J. appears, in our view, to have come to the conclusion that all disputes between the respondent as supplier of electricity to various consumers, have first to be handled by the Board. Whether or not Parliament by enacting section 87, above, intended to deny the High Court the original jurisdiction to deal with even minor complaints on electricity bills by domestic consumers, is to our minds, doubtful. This country has both large and small consumers of electricity scattered all over the country. The Board was based in Nairobi and had only 7 members. It is doubtful if the Board, as constituted would have the capacity to handle all disputes arising from the supply of electricity by the respondent.Besides, a careful reading of section 121 which sets out the functions of the Electricity Regulatory Board, does suggest that section 87 has to be read along with it in order to make out whether the disputes referred to under section 87, above, include even those arising from complaints by small domestic consumers.Moreover, the wording of section 87, does suggest that it is only concerned with the accuracy or otherwise of metres for ascertaining the amount of electricity consumed by a given customer. The section, as material, reads thus:“87(1) If any dispute arises… as to whether any meter… is or as to whether that value has been correctly registered in any case by any metre.

45. The reading of both the repealed act and the energy act 2019, I am certain that the court below erred in disregarding binding court of appeal decisions. I also noted that in spite of both parties referring to authorities, the court simply did not refer to any in its decision.

46. Before departing, I will need to deal with the reference to article 159(20 as a constitution panacea to all infractions. The constitution is a living documents moving with times with its articles working in harmony. It does not have one section decapitating another. Therefore, Article 159 should be read with article 50 and 24 to produce a wholesome reading.

47. In the case of Katiba Institute & 3 others v Attorney General & 2 others [2018] eKLR, justice EC Mwita, stated as doth: -48. It was stated in Ndyanabo v Attorney General of Tanzania [2001] EA 495, that it is the duty of the person alleging constitutional invalidity of a statute or statutory provision to prove that invalidity.49. Fifth, the Court must also consider the cause- effect in interpreting the Constitution. The purpose of enacting a statute and the effect of implementing the statute will also determine the constitutionality of a statute. In the case of R v Big M Drug Mart Ltd [1985]1 SCR 295, the Supreme Court of Canada observed;“Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in assessing the legislation’s object and thus the validity.” (See Olum and another v Attorney General [2002] 2 EA 508).50. And In Ng Ka Ling & Another v The Director of Immigration (1999) 1 HKLRD 315. the Court stated;“It is generally accepted that in the interpretation of a Constitution such as the Basic Law, a purposive approach is to be applied. The adoption of a purposive approach is necessary because the Constitution states general principles and expresses purposes without condescending to particularity and definition of terms. Gaps and ambiguities are bound to arise and, in resolving them, the courts are bound to give effect to the principles and purposes declared in, and to be ascertained from, the Constitution and relevant extrinsic materials. So, in ascertaining the true meaning of the instrument, the courts must consider the purpose of the instrument and its relevant provisions as well as the language of its text in the light of the context, context being of particular importance in the interpretation of a constitutional instrument.”51. Guided by the above principles, we now turn to consider whether the impugned provisions go against Articles of the Constitution as contended by the petitioners. In doing so the Court should bear in mind the principle stated in US v Butler 297 US 1 [1936] that;“When an Act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the government has only one duty; to lay the article of the constitution which is invoked besides the statute which is challenged and decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the constitution; and, having done that, its duty ends.”

48. At the end result litigation and alternative dispute mechanism are given an equal footing. They however, work at a different pedestal. Litigation is a sacrosanct judicial duty that a party cannot easily be driven out of court without an express provision stating so. To remove a legal dispute to a 7-man authority neither has capacity not the knowledge on negligence is to deny a party justice and commit judicial atrocities.

49. It can be recalled that hon C.B. Madan, C.H.E Miller and K.D Potter, JJA in D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] eKLR had this to postulate: -“Per Lord Justice Swinfen Eady in Moore v. Lawson and Another (supra) at p. 419. "It cannot be doubted that the court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the court. It is a jurisdiction which ought to be very sparingly exercised. and only in exceptional cases. I do not think its exercise would be justified merely because the story told in the pleadings was highly improbable, and one which it was difficult to believe could be proved". per Lord Herschell in Lawrence v. Lord Norreys, 15. A.C. 210 at p. 219. ”

50. The appeal has merit. The court had jurisdiction. The questions raised in section 2,5,6, 63, 107,108 and 110 of the repealed act relate to disconnection and use of illegal or substandard apparatus resulting in disconnection. Other relate to metring. Therefore, the court erred in giving up jurisdiction it had. Whereas it feels nice to conclude matters, a court must take jurisdiction it had. The court should also have noted that the defence accepted jurisdiction by filing defence. The Respondent should have, if they thought that the matter should be in a different forum, sought its referral before defending it.

51. Consequently, I find there is merit in this appeal and I allow the same.

Determination 52. The upshot of the foregoing is that I make the following orders: -a.I find there is merit in this appeal and I allow the same set aside ruling and order striking out the suit in the lower court, that is Mombasa SRMCC 1727 of 2018 and reinstate the suit for hearing and final disposal by a court other than Hon. Muchoki.b.A copy of this judgment should be served upon the court.c.The primary filed be fixed for hearing forthwith before the chief magistrate’s court. Meanwhile the matter shall be fixed for mention on 21st July 2023 for directions before the Chief Magistrates Court.d.The appellant shall have costs of Ksh 95,000/= for the Appeal which shall be paid within 30 days, in default execution do issue.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 5TH DAY OF JULY, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-No appearance for parties