[2024] KEET 390 (KLR)

Wekesa v Energy and Petroleum Regulatory Authority & another (Tribunal Appeal E010 of 2023) [2024] KEET 390 (KLR) (29 February 2024) (Judgment)

Neutral citation: [2024] KEET 390 (KLR)

Republic of Kenya

In the Energy & Petroleum Tribunal

Tribunal Appeal E010 of 2023

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

February 29, 2024

Between

Dr. Moni Wekesa

Appellant

and

Energy and Petroleum Regulatory Authority

1st Respondent

Kenya Power & Lighting Company Limited

2nd Respondent

Judgment

1. Prof. Dr. Dr. Moni Wekesa (“the Appellant”) filed this appeal against the Kenya Power andLighting Co Ltd (“the 1st Respondent” or “KPLC” or “Kenya Power”) and the Energy and Petroleum Regulatory Authority (“the 2nd Respondent” or “EPRA”).

2. The Appellant is a Kenyan who is the holder of electricity account numbers 36444685 and28174878 for electricity supply at his village home at Muhuni, Navakholo Sub-County within Kakamega County, and at his Nairobi residence, respectively.

3. The Appellant avers that he received exorbitant electricity bills from the 1st Respondent on 3rdand 27th June 2021 as well as 2nd November 2021 in respect of his village home. On 1st July 2021 and 12th November 2021, he lodged complaints with the 1st Respondent and pleaded with them not to disconnect electricity supply pending resolution of the complaints.

4. The 1st Respondent not only did not address the complaints but also disconnected the powersupply on 12th November 2021.

5. The Appellant referred the matter to the 2nd Respondent, but the supply was not restored.

6. The Appellant moved the High Court in Kakamega in Petition No. 12 of 2021 and on 27th March2023, the High court issued, among other orders, an order of mandamus compelling the 2nd Respondent to complete investigations and issue a decision in the dispute relating to electricity supply to account No. 3644468 within thirty (30) days from the date of the judgment.

3. Pursuant to the aforesaid order of the court, the 2nd Respondent became possessed of the disputebetween the Appellant and the 1st Respondent.

4. On 2nd May 2023, the 2nd Respondent tendered its decision. The Appellant was dissatisfied withthat decision and he invoked the appellate jurisdiction of this Tribunal by filing an appeal dated 8th May, 2023.

B. APPELLANT’S CASE 9. The Appellant states that since lockdown due to COVID-19 in 2020, he visited his village home atMuhuni whose electricity supply account number is 36444685 just about 3 times from January to October 2021.

10. The Appellant received two electricity bills of KShs 14,365/= on 3rd June 2021 and KShs 3,606/= on 27th June 2021, which he considered exorbitant upon which he filed a complaint with the 1st Respondent. On 2nd November 2021 the Appellant received a bill of KShs. 22,151/= and lodged a complaint with the 1st Respondent on 12th November 2021, pleading with them not to disconnect his supply until the complaint is sorted out.

11. All these bills relate to the COVID-19 era, when movement was restricted in the country andAppellant was locked down in Nairobi.

12. The 1st Respondent did not address the Appellant’s complaints but instead disconnected theelectricity supply at the subject premises on 12th November 2021, making the Appellant unable to benefit from modern gadgetry that requires powering with electricity.

13. On 29th November 2021, the Appellant referred the matter to the 2nd Respondent fordetermination. Up until 21st December 2021, the 2nd Respondent had not directed the 1st Respondent to restore power supply and the Appellant petitioned the High Court in Kakamega for redress.

14. On 6th January 2022, the court gave the parties fourty (40) days to resolve the matter out ofcourt.

15. The 1st Respondent carried out an investigation and issued a report which the Appellantcontested on grounds that it had no explanation for the exorbitant charges nor spikes in the meter readings. The 1st Respondent went on to explain that some of meter readings were estimates owing to their agents’ inability to access the Appellant’s premises.

16. The claim that the 1st Respondent’s agents were unable to access the premises was refuted bythe Appellant on grounds that the 1st Respondent had the Appellant’s telephone and email contacts but never informed them of their inability to access the subject premises.

17. The Appellant commissioned an expert who studied the report and raised several issues.a.The technical integrity of the meter was NOT impugned save for a little concern that firstrespondent was acting as investigator and judge in its own cause.b.The possibility of an algorithm built in the billing system to produce exaggerated bills at intervalsof five months.c.Overvoltage and highly variable frequencies affecting the energy passing through the meterresulting in higher readings of electricity than the energy actually consumed.

18. According to the Appellant, the complaint now morphed from a few spikes in the form ofoverbilling to that of a questionable transmission system that results in unnecessarily higher bills than the energy consumed.

19. The Appellant compared bills for his Nairobi residence and those for the village home for May toJune 2021 and September to November 2021. For the Nairobi residence, the bills were KShs.13,089. 46 and KShs. 19,976. 46, totaling KShs. 33,065. 46 while for the village home, the bills were KShs. 18,503. 00 and KShs. 39,854. 00, totaling KShs. 58,357. 00. This clearly illustrates, according to the Appellant, that bills at the rarely occupied rural premises were much higher than those for the occupied premises in Nairobi.

18. During the pendency of the suit the 1st Respondent issued other bills on 30th May 2022 (KShs.15,131/=), on 25th August 2022 (KShs. 10,495/=) and in September 2022 (KShs 8,569/=) which the Appellant disputed. At all material times, the premises in the village were not occupied.

19. The 2nd Respondent invited the Appellant and the 1st Respondent to a mediation meeting on13th April 2023, however the parties did not reach an agreement and the mediation process collapsed without a mediation agreement.

20. Upon the collapse of the mediation process, it fell on the lap of the 2nd Respondent to resolvethe dispute between the Appellant and the 1st Respondent.

21. On 2nd May 2023, the 2nd Respondent, communicated its decision to the parties, stating that:1. The subject meter number 61107196 was found to be accurate with an accuracy of 0. 20725%which is within the allowed accuracy limits.2. The complainant to fully settle the bills as provided by Kenya Power.3. The Respondent to recover the temporary meter number 62053117 installed on site and reinstallthe original meter number 61107196 that had been recovered for testing.4. The Respondent to ensure hence forth that the complainant’s meter is read regularly to avoidaccumulation of bills.5. This determination is binding on all parties.6. The parties are at liberty to exercise their right of appeal to this decision at the Energy andPetroleum Tribunal pursuant to the provisions of the Energy Act, 2019. 24. Dissatisfied with the decision rendered by the 2nd Respondent, the Appellant filed an appeal dated 8th May 2023 against the decision of the 2nd Respondent. The Appellant proffered four (4) grounds of appeal: namely, the decision was premature; biased; unreasonable and it sanitized an illegality. The Appellant sought from the Tribunal, the following declarations and orders:a.The decision dated 2nd May 2023 is premature, biased, unreasonable, and that it sanitizes anillegality.b.Art 9. 6.3 and table 9-1 of the Kenya National Distribution Grid Code is illegal, unconstitutional,null and void.c.The imposition of a voltage standard for rural areas which differs from that for urban areasresulted in higher electricity bills at the subject meter than actually consumed.d.The first and second respondents have violated and continue to infringe the rights of Appellantunder Articles 27, 39, 40, and 46(1)(c) of the Constitution of Kenya, 2010. e.The decision dated 2nd May 2023 be and is hereby removed into this Honourable Tribunal and isquashed.f.The disputed bills together with all outstanding bills on the village account no. 36444685 be andare hereby canceled on account of being based on an illegal standard of billing.g.The 1st and 2nd Respondents take technical and other measures to ensure that electrical supplyto the subject account is based on a voltage standard similar to that of urban areas within the next 30 days or any shorter period from the date of this decision.h.Pending implementation of the measures contemplated in (g) above, Appellant be and is herebyfreed from paying any bills on the disputed account until the illegalities are rectified.i.The 1st Respondent be and is hereby prohibited from disconnecting energy supply to the subjectaccount until 1st Respondent has complied with the requirement to take measures to align the voltage levels at the subject meter to that of urban areas.j.The 1st and 2nd Respondents pay damages for violation of Appellant’s rights and freedoms underArticles 27, 39, 40, and 46(1)(c) of the Constitution of Kenya, 2010. k.Costs be provided for.

C. 1ST RESPONDENT’S RESPONSE AND SUBMISSIONS 25. The 1st Respondent opposes the appeal by the Appellant and avers that the appeal is a ployconjured up to save the face of the Appellant and to exempt him from his statutory obligation of paying his electricity bills.

26. Without prejudice to the foregoing, the 1st Respondent responds to the grounds raised by theAppellant as follows: -(a)That the decision is premature

27. The 1st Respondent avers that the mediation process was initiated by the 2nd Respondent incompliance with paragraph 56 (c) of the judgment delivered on 27. 03. 2023, in Kakamega HC Constitutional Petition No. 12 of 2021, Prof. Dr. Moni Wekesa vs. Kenya Power & EPRA.

28. At the mediation before the 2nd Respondent, the parties consented to have the subject metertested by the Kenya Bureau of Standards (KEBS) to confirm the accuracy before delving into the issue of bills. The parties further agreed that if the accuracy of the meter is confirmed, then the outstanding electricity bills based on the units recorded by the meter would be due and payable.

29. The 1st Respondent further provided and shared with both the Appellant and the 2ndRespondent, the customer statement showing the units consumed and the bills.

30. KEBS confirmed via their report dated 25. 04. 2023 that meter number 61107196 was healthy andaccurate. This formed the basis of the 2nd Respondent’s decision dated 02. 05. 2023. As such, they submitted, we are surprised with the Appellant’s averments that the 2nd Respondent’s decision dated 02. 05. 2023 was premature.

31. In light of the foregoing, it is the 1st Respondent’s position that the decision is mature and thatthe 2nd Respondent followed all the due procedure in arriving at its decision dated 02. 05. 2023. (b)That the decision is biased32. The 1st Respondent avers that there was no biasness whatsoever on the following grounds:a.The 2nd Respondent derives its jurisdiction from the Constitution of Kenya 2010 as well as the Energy Act, 2019. b.The 2nd Respondent commenced the mediation between the parties in compliance withparagraph 56 (c) of the judgment delivered on 27. 03. 2023, in Kakamega HC Constitutional Petition No. 12 of 2021, Prof. Dr. Moni Wekesa vs. Kenya Power & EPRA.c.On 13. 04. 2023, the 2nd Respondent invited both the Appellant and the 1st Respondent formediation and minutes of the sessions were recorded and shared with the parties.d.At the mediation, both parties were given equal opportunities to present their case and along theway, parties consented to engage an independent party, KEBS, to test meter number 61107196 to confirm its accuracy.e.Meter testing was conducted to rule out any allegations of non-accuracy as the Appellant wasdisputing the units recorded by the subject meter on the ground that the meter was leading to generation of high bills.f.Upon testing, the outcome was shared with all the parties after which the 2nd Respondent madeits decision dated 02. 05. 2023. 33. Looking at the proceedings before the 2nd Respondent, we find no fault of biasness as alleged by the Appellant, the 1st Respondent submitted.(c)That the decision is unreasonable

34. On this ground, the 1st Respondent avers that the Appellant’s position that the decision of the2nd Respondent was unreasonable is unfounded and a ploy for sympathy before this Honourable Tribunal.

35. From the records before this Honourable Tribunal, it is clear from the 2nd Respondent’s decisiondated 02. 05. 2023 that the 2nd Respondent relied on the report from KEBS.

36. The 2nd Respondent did not rely on any extrinsic information but the information and documentsplaced before it by the parties and subsequently, the report from KEBS.

37. There was no evidence placed before the 2nd Respondent on the alleged overvoltage as theAppellant only disputed the alleged high bills arising from the units recorded by meter number 61107196.

38. As such, it is clear from the Appellant’s appeal, that the Appellant is on a fishing expedition toseek for sympathy to exempt him from paying his electricity bills.

39. It is the 1st Respondent’s position that the outstanding bill is due and payable as the sameoriginated from a healthy meter which had recorded accurate units.

40. Further, on this ground, it is the 1st Respondent’s position that the 2nd Respondent’s decisionwas procedural and reasonable.(d)That the decision sanitizes illegality

41. The 1st Respondent avers that the Appellant is out of context as the issue of the Kenya NationalDistribution Grid (KNDC) is an afterthought and is an attempt to mislead this Honourable Tribunal that there is an issue for determination.

42. The Appellant has alleged that he has electricity accounts both in the village and in Nairobi. Theaccuracy of all the meters are tested in accordance with the prescription in the KNDC including the 1st Respondent’s meter serving the Appellant in Nairobi.

43. It is awkward for the Appellant to appreciate the same standard in Nairobi and dispute the samein the village.

44. It is the 1st Respondent’s position that the testing procedure and standards for all the energymeters cuts across all the energy meters utilized by the public and is not limited to the Appellant’s meter number 61107196.

45. On the issue of the alleged violation of the Appellant’s Constitutional rights, the 1st Respondentavers that the same was deliberated on and finalized in Kakamega HC Constitutional Petition No. 12 of 2021, Prof. Dr. Moni Wekesa vs. Kenya Power & EPRA.

46. In the judgment, the High Court ordered the 2nd Respondent to complete investigations andissue a decision in the dispute relating to electricity supply to account number 3644468 within thirty days from the date of the judgment.

47. The judgment did not order the 2nd Respondent to establish whether there was any allegedbreach of the Appellant’s constitutional rights. The High Court understood its jurisdiction and recognized the jurisdiction of the 2nd Respondent in making such orders. As such, this Honourable Tribunal does not have jurisdiction to hear and determine any issue relating to alleged violation of constitutional rights as the same falls within the jurisdiction of the High Court as established under the Constitution.

48. The prayers sought by the Appellant are untenable and will only engage this HonourableTribunal in academic exercise, it was submitted.

49. To date, the Appellant is enjoying constant electricity supply from the 1st Respondent withoutpayment of any electricity bill since December 2021, an allegation, which is challenged by the Appellant.

50. The 1st Respondent prays that this Honourable Tribunal upholds the 2nd Respondent’s decisionof 02. 05. 2023 and dismiss the Appellant’s appeal with costs to the 1st Respondent.

D. 2ND RESPONDENT’S RESPONSE AND SUBMISSIONS 51. The 2nd Respondent denies the averments by the Appellant that its decision made on 2nd May2023 was premature, biased, unreasonable and sanitizes an illegality.

52. The 2nd Respondent avers that the KNDC referred to by the Appellant is a legally bindingdocument having undergone a rigorous approval process involving the 2nd Respondent, the Ministry of Energy and Petroleum, the Attorney General and the Parliament of Kenya and reference to it by the Appellant is an afterthought.

53. The 2nd Respondent avers that the decision appealed against was not made prematurely sinceboth parties were heard and a meter test carried out as agreed by the parties before the decision was arrived at. Further, parties were directed by Hon. Justice J. Otieno to complete investigations within 30 days from the 27th March 2023 and thus the 2nd Respondent acted in total compliance with the court’s orders.

54. The 2nd Respondent states that the Appellant’s meter number 61107196 was tested by KEBS onthe 25th April 2023 and found to be in good working condition.

55. The 2nd Respondent takes the view that the meter test results issued by KEBS are accurate andauthentic for the reason that KEBS is a government agency that provides standards, metrology and conformity assessments services and is further mandated to provide testing services on behalf of the government for local and imported commodities with a view to determining whether such commodities comply with the provisions of the Standards Act, Cap 496, Laws of Kenya.

56. The 2nd Respondent avers that it did not contact KEBS as requested by the Appellant on the28th April, 2023 for the reason that the High Court in Kakamega had issued strict timelines within which the 2nd Respondent was required to render a decision. Further, the Appellant did not take any steps whatsoever to contact KEBS for any clarifications and/or information regarding their test results.

57. The 2nd Respondent is mandated under Regulation 15 and 16 of the Energy (Complaints and Disputes Resolution) Regulations, 2012 to identify and appoint an expert skilled in alternative dispute resolution techniques and hereby confirm that it did appoint a skilled mediator.

58. The 2nd Respondent states that it considered both the Appellant’s and the 1st Respondent’ssentiments before making a decision as follows:a.The 2nd Respondent checked the condition of the Appellant’s account number 36444685 bycarrying out a meter test at KEBS which confirmed that the meter is healthy.b.The 2nd Respondent was guided by the provisions of the KNDC.

59. The 2nd Respondent avers that this is not the proper court to hear and determine a claim forviolation of rights and freedoms of the Appellant since the same ought to be heard by theConstitutional Division of the High court. The 2nd Respondent states that the Appellant’s claim for violation of his rights as outlined from paragraph 27-41 is ‘res judicata’ since the same has been heard and determined by Hon. Justice P. Otieno, vide Kakamega Constitutional Petition number 12 of 2021- Prof Moni Wekesa -vs- Kenya Power & EPRA.

59. The Nairobi electricity bills produced by the Appellant are irrelevant to this case and do notindicate whether the same belong to the Appellant or not. The bills are addressed to Integrated Properties Limited and there is no evidence to confirm that the same relate to the Appellant’s residence. The Appellant produced an affidavit from the property manager on how bills were sent to residents living in the property. However, it was submitted that “the Appellant did not produce any bills sent to him through his e-mail”

60. The 2nd Respondent prays that the Appeal be dismissed with costs and the decision of the 2ndRespondent dated 2nd May, 2023 be upheld.

E. ANALYSIS AND DETERMINATION62. Having considered the record and submissions made by both the Appellant and the 1st and 2nd Respondents, as well as the law, we are of the view that the issues for determination are:a.Whether the Tribunal has jurisdiction to determine violations of the Bill of Rightsb.Whether the Appellants’ appeal grounded on the five (5) grounds of appeal is meritious on all orany of the grounds of appeal.c.Who should bear the Costs of the appeal.(a)Whether the Tribunal has jurisdiction to determine violations of Bill of Rights

63. The Appellant at paragraphs 38 to 42 of his appeal has alleged violations of Articles 27, 39, 40 and 46 of the Constitution of Kenya, 2010 which fall under the Bill of Rights. 64. The Appellant has already secured from the High Court of Kenya at Kakamega a declaration tothe effect that his “fundamental rights and freedoms as enshrined under Articles 28,33,36,46 & 47 of the Constitution of Kenya have been contravened and infringed upon by the respondents;” and awarded the sum of Kshs. 800,000/-. We are aware that the decision of the High Court has been challenged in the Court of Appeal at Kisumu in Civil Appeal No. E129 of 2023.

65. He now claims the violation alleged before the Tribunal are of different generic. Indeed, theArticles invoked before this Tribunal and those determined by the High Court are different, except for Article 46 of the Constitution which is challenged in both forums. Whether or not the alleged violations are of a different generic of rights that the Appellant is now pursuing before this Tribunal is beyond its jurisdiction.

66. The Supreme Court of Kenya in the case of Nicholus v Attorney General & 7 others;National Environmental Complaints Committee & 5 others (Interested Parties), made it absolutely clear that tribunals do not have the jurisdiction to entertain disputes on violation offundamental rights and freedoms. The Supreme Court expressed itself thus“We say so because neither the NET, EPRA nor EPT have the jurisdiction to determine alleged violations of the Constitution..……………………………………………………………………………………………Determination of allegations of constitutional violations cannot be such issues as to attract the Tribunal’s attention.”

63. Accordingly, the Tribunal holds that it has no jurisdiction to entertain the Appellant’s disputepremised on violations of the Bill of Rights, an integral part of the Constitution.(b)Whether the Appellants’ appeal grounded on the five (5) grounds of appeal is meritious on all or any of the grounds of appeal.68. In the mediation meeting held on 13th April, 2023, it is recorded that:“The parties after failing to agree because of the contagious bill resolved as follows:1. Kenya Power proposed that the meter be tested by EPRA through KEBS and if meter was foundto be functioning well, then the disputant should pay the entire bill.

2. It was agreed that the meter to be recovered jointly by Kenya Power and EPRA in the presence ofthe complainant’s representative for testing

3. The meter testing and calibration be undertaken by KEBS facilitated by EPRA.

4. In the meantime, the customer would be provided with a temporary meter by Kenya Power.(5) All parties would take the removal readings of the meter at site and record the same in the register provided by EPRA.

(6)Kenya Power to provide an excel sheet tabulation clearly indicating how Kshs. 40,122 in contention was arrived at including all the levies and tariff used to be captured in the report.”

69. Significantly, the meter in question was submitted to KEBS for testing. The meter was tested onthe 24th April 2023 in accordance with the IEC 62053-21:2020 standard MET/12/CP/01 procedure, which is a procedure for calibration of static meters used for measuring active electrical energy consumption. The meter was found to be within the acceptable limits of accuracy and a report dated 25th April 2023 transmitted to the parties.

70. It follows that the meter accurately measured the power consumed at the rural premises of theAppellant. However, part of the bills were not computed from the readings recorded by the meter.

71. The 1st Respondent admitted in the documents filed in the Tribunal that some of the bills werebased not on readings of the meter, but on estimates, because they could not access the rural residence of the Appellant. Absent the readings recorded by the now established accurate meter, the estimated bills remain contestable.

72. It is for this reason that during mediation, it was agreed that:“6. Kenya Power to provide an excel sheet tabulation clearly indicating how Kshs. 40,122 in contention was arrived at including all the levies and tariff used to be captured in the report.”

69. It was further recorded that “the Chair reassured all the parties that once the excel tabulationsof the bill and the meter test results were received EPRA would proceed to make a determination on the matter and inform the parties of its decision.”

70. The 2nd Respondent rendered its impugned decision without the excel sheet tabulation clearlyindicating how KShs. 40, 122 in contention was arrived at.

71. The 1st Respondent having acknowledged in the mediation process that the “excel sheettabulation” was critical in determining the dispute, the 2nd Respondent proceeded to determine the dispute without that crucial document.

72. It is expected that the said document will show how many units were recorded by the accuratemeter; which units were estimated; the basis of the estimation etc. Not surprisingly, the Appellant faulted the decision as having been reached prematurely. We find merit on this ground of appeal.

73. Similarly, the decision is unreasonable for making the assumption that the bills were founded oncorrect and accurate readings of the power consumed, when the 1st Respondent, admits some of thebills are based on estimates. Those estimates and the basis thereof, remain unknown to the Appellant. He has a right to know how his electricity bill has been computed.

69. We are of the view, that the 2nd Respondent was obligated to take into account how thecontested bills were arrived at given that some of the bills were estimates and not readings from the accurate meter. Failure to do so amounts to acting unreasonably within the Wednesbury sense.

70. However, no evidence was produced to convince us that the impugned decision was biased andtaken to sanitize an illegality. Accordingly, we reject those two (2) grounds of appeal.

F. DISPOSITION 80. The remedy and relief that commands itself to us is that the appeal be and is hereby allowed tothe extent that the decision of the 2nd Respondent issued on 2nd May 2023 is hereby set aside.

81. The dispute is referred back to the 2nd Respondent to be determined within thirty (30) days fromthe date hereof, taking into consideration the excel sheet tabulation to be provided by KPLC clearly indicating how the KShs. 40,122 in contention was arrived at.

82. Each party shall bear its costs.

Dated and Delivered at NAIROBI this 29th day of February 2024. ………………………..Mr. Kioko Kilukumi, SCChairperson………………………..Ms. Doris MwirigiVice Chairperson……………………………..Eng. Buge Hatibu Wasioya Member………………………….Mr. Feisal Shariff IbrahimMemberSIGNED BY: KIOKO KILUKUMITHE JUDICIARY OF KENYA.ENERGY AND PETROLEUM TRIBUNALENERGY AND PETROLEUM TRIBUNAL DATE: 2024-02-29 16:27:10+03The Judiciary of Kenya 9/9Doc IDENTITY: 249235313171288375151914909276 Tracking Number:OON88J2024