The High Court has ruled that Kenya Power and Lighting Company acted unconstitutionally when it disconnected electricity to Nairobi County government offices over unpaid bills.
Justice Jairus Ngaah said the power utility should have exhausted mandatory intergovernmental dispute-resolution mechanisms before resorting to what he described as “draconian self-help”.
The dispute followed KPLC’s disconnection of electricity to several Nairobi County offices over outstanding bills, triggering a public standoff that was later resolved through mediation convened by the Head of Public Service.
The case was filed by Charles Waithaka Rubia, a resident of Mombasa County, in his own interest and on behalf of residents of Kenya’s 47 counties.
Rubia argued that the February 14, 2025, disconnection had “ground the machinery of the county to a halt”, while threatened disconnections could have affected Pumwani Maternity Hospital, mortuaries, fire stations and street lighting.
He told the court the incident was not isolated, citing previous power disconnections affecting public facilities in Busia, Kisumu, Mombasa and Homa Bay.
In Busia, he said, electricity was disconnected from the county referral hospital over an unpaid Sh500,000 bill, affecting services in the theatre and nursery and forcing accident victims to be transferred to a private facility.
Rubia argued that the dispute between KPLC and Nairobi County was an intergovernmental dispute and should, therefore, have been handled under Article 189 of the Constitution and the Intergovernmental Relations Act.
He sought declarations that disconnecting power without first exhausting the prescribed dispute-resolution mechanisms was unconstitutional and violated Kenyans’ right to the highest attainable standard of healthcare under Article 43.
KPLC opposed the petition, arguing that it is a public company registered under the Companies Act and listed on the Nairobi Securities Exchange. It maintained that Article 189 and the Intergovernmental Relations Act apply only to disputes between governments.
The utility also argued that disconnecting electricity over unpaid bills was a lawful remedy under Section 160 of the Energy Act.
Justice Ngaah, however, noted that the national government holds a controlling 50.1 per cent stake in KPLC, appoints the majority of its board and that Executive Order No. 2 of November 2023 places the company under the State Department for Energy.
The judge found that KPLC’s action violated Article 189(3) of the Constitution, which requires governments to make every reasonable effort to settle disputes.
He also pointed to Section 161 of the Energy Act, which requires electricity licensees to report outstanding bills attributable to county governments to the National Treasury CS for parliamentary appropriation.
“The one route closed is the one that holds the sick, the bereaved and the unlit streets hostage to a balance sheet,” Justice Ngaah said.
The court declared that the dispute between KPLC and Nairobi County is an intergovernmental dispute.
It further ruled that disconnecting essential public installations, including hospitals, water facilities, fire stations, mortuaries and street lighting, without exhausting the prescribed mechanisms amounts to a threatened violation of rights protected under Articles 26, 28 and 43 of the Constitution.
Justice Ngaah ordered that KPLC should not disconnect such essential services unless it has first reported outstanding county bills to the National Treasury, pursued the prescribed intergovernmental dispute-resolution mechanisms and issued 30 days’ written and public notice.
The judge also directed KPLC and Nairobi County, with the facilitation of the Intergovernmental Relations Technical Committee, to refer any outstanding mutual claims to alternative dispute-resolution mechanisms under sections 31 to 35 of the Intergovernmental Relations Act within 60 days of the judgment.
The order does not affect proceedings in Milimani ELCEPPET/E009/2025.
Each party was ordered to bear its own costs in the public interest case.
