Judge rejects City Hall bid to quit Kenya Power unpaid Sh6bn bill suit

They argued that the court case filed in February, arising from actions taken by both the Kenya Power (a national government agency) and the water utility company (a county government entity) over unpaid electricity bills and wayleave fees, was an intergovernmental dispute.

But Justice Anne Omollo rejected the application and said that Article 189 of the Constitution, which provides settling of inter-governmental disputes by alternative dispute resolution mechanisms, does not oust the powers of the court to entertain the case as argued by the county government and the water company.

"The existence of alternative dispute resolution mechanisms do not automatically oust the jurisdiction of this court to hear petitions alleging violations of the bill of rights. Parties alleging want of jurisdiction must demonstrate the adequacy of the alternative mechanism and which in my view and I so hold a basis was not laid," said the judge on Friday.

The source of the dispute is decision of KPLC to disconnect power at City Hall over a Sh1.6 billion unpaid electricity bill.

In retaliation, the county government disconnected water supply and sewerage system at Kenya Power offices building, Stima Plaza, due to an outstanding bill of Sh4.8 billion in way leave charges, bringing the cumulative value of the disputed bills to Sh6.4 billion.

Kenya Power moved to court alleging violation of constitutional rights after the county government extended the retaliation by dumping waste at Stima Plaza before barricading the building with garbage trucks.

It said the waste dump paralysed business at the building because hundreds of Kenya Power workers and tenants including medical clinics, financial institutions, law firms, insurance agencies were left counting loses as the premises were inaccessible.

In response, the county government and the water company filed preliminary objections urging the court to down its tools and dismiss the case.

They contended that such disputes must first undergo alternative dispute resolution mechanisms, including negotiation, mediation, and arbitration, before resorting to judicial intervention.

However, Justice Amollo stated that the objections lacked merit. The judge said the court could not tell why the water company disconnected the water and sewer line services to the KPLC building.

In the petition KPLC sought various orders, including a permanent injunction against the county government from dumping toxic, hazardous and untreated garbage at the entrance of any of their premises.

"The respondents' actions, which are both barbaric and inhumane, have adversely exposed the over 4,000 petitioner's members of staff and innocent tenants accommodated at the petitioner's premises as well as the general public to detrimental health complications,” Kenya Power said in the court papers.

The power utility is also seeking declaration that the conduct and actions of the county government contravened the Constitution and infringed upon their fundamental rights.

Also sought are orders for the reconnection of water supply and unblocking of the sewer system to its premises, an injunction against further disconnections or dumping of waste, cleanup of already dumped garbage, and the release of impounded emergency service vehicles.

It claimed these retaliatory actions by county government and its water company were triggered by the disconnection of electricity to their offices due to outstanding electricity bills exceeding Sh1.68 billion.

Citing Article 189 of the Constitution and various Sections of the Intergovernmental Relations Act 2012, the county contended that such disputes must first undergo alternative dispute resolution mechanisms, including negotiation, mediation, and arbitration, before resorting to judicial intervention.

They invoked the doctrine of exhaustion, emphasizing that all non-judicial remedies must be pursued before seeking court redress.

For its part, KPLC said the petition raises significant constitutional claims, including violations of the right to a clean and healthy environment, stemming from acts such as illegal waste dumping and water disconnection.

According to KPLC, the arguments based on the Intergovernmental Relations Act, Rating Act, and Water Act were misplaced. It said these statutes either do not apply to the Petitioner or the relevant tribunals are non-functional and in particular, the Water Tribunal’s current lack of quorum, evidenced by public domain sources such as the Judicial Service Commission website and the Judiciary Job Portal.

The Petitioner argued that doctrines such as constitutional avoidance and exhaustion do not apply where statutory remedies are ineffective or unavailable, particularly where fundamental rights are at stake.

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