Reprieve for county governments and agencies in dispute with Kenya Power over electricity bills

AUTHOR: PHILIP MUYANGA

DATE: 08/25/2026

Image Courtesy of CHATGPT Image Generator

Kenya Power & Lighting Company shall not disconnect or threaten to disconnect electricity supply to essential public installations on account of any billing or financial dispute with any county government unless it has reported to the Cabinet Secretary for National Treasury, the High Court has ruled.

The decision is reprieve to county government and government agencies as the court also ruled that Kenya Power shall not disconnect or threaten to disconnect electricity until it has pursued consultation, negotiation and alternative dispute resolution mechanisms.

It also ruled that Kenya Power should also give not less than 30 days’ written notice to the county government concerned and public notice in accordance with section 5 of the Fair Administrative Action Act before disconnecting or threatening to disconnect power.

“For the avoidance of doubt, this order does not restrain Kenya Power from pursuing recovery of any sums due to it by way of the said mechanisms or by action in a court of competent jurisdiction and does not affect its dealings with consumers other than governments and government agencies,” the High Court sitting in Mombasa ruled.

The decision follows a petition by a Mombasa resident Charles Waithaka who had sued Kenya Power, Cabinet Secretary for Energy and the Attorney General following disconnection of power supply to several offices at the county government of Nairobi early last year.

Through lawyer Elkana Mogaka, the petitioner had told the court that electricity, though not expressly enumerated in the Bill of Rights, is inextricably linked to the rights to life, dignity and health and is regarded as a derivative or enabling socio-economic right.

The High Court also issued a declaration that the dispute between Kenya Power and the county government of Nairobi concerning electricity and wayleave charges, land rates and related mutual claims is an intergovernmental dispute.

It also noted that within the Energy Act, Section 161 creates a procedure for a case in which the national government, a county government or any government agency defaults on its electricity bills where the licensee shall report the billings to the CS National Treasury, who shall in turn report them to Parliament for necessary appropriation.

“It recognises that government consumers are not ordinary consumers, their revenues are public funds, their expenditures pass through appropriation and their premises host services on which the public depends,” noted the court.

The court noted that there was no evidence before it that Kenya Power reported the county’s outstanding billings to the CS National Treasury before or after reaching for the switch.

However, the court emphasized that its decision does not absolve the county of its obligation to pay for electricity consumed nor does it extinguish the debt or any part of it and does not disable Kenya Power from recovering what it is owed through any lawful process.

“It decides only that the switch is not among the lawful instruments of intergovernmental debt collection where essential public services hang upon it,” ruled the court.

The court noted that Kenya Power purchases power in advance under binding agreements, services heavy debt and must be paid if it is to keep the national lights on.

It noted that a culture of governmental default, insulated from consequence, would itself ultimately imperil the rights of every Kenyan who depends on a solvent utility.

“Nothing in this judgment creates a right to free electricity, a moratorium on payment, or an immunity for county governments,” ruled the court.

It said the decision recognizes the constitution and section 161 as having created a pathway to report the debt to the National Treasury for appropriation, engage, consult and negotiate under the Inter-Governmental Relations Act (IGRA),declare a formal dispute and invoke the Summit or Council if engagement fails and sue if all else fails.

“The one route closed is the one that holds the sick, the bereaved and the unlit streets hostage to a balance sheet,” ruled the High Court.

Through Mr Mogaka, the petitioner had also argued that the dispute between Kenya Power, which the national government holds a controlling interest and over which it exercises pervasive control, and the county government of Nairobi was intergovernmental.

He argued that the constitution and IGRA obliged Kenya Power to make every reasonable effort to resolve the dispute amicably, apply and exhaust alternative dispute resolution mechanisms established before resorting to disconnection which he argued without notice violated or threatened the rights of Kenyans.

Kenya Power had opposed the petition arguing that it was an ordinary utility-billing and debt-recovery dispute dressed in constitutional garb.

The power utility firm argued that it is a public company registered under the Companies Act and that it is not a "government”.

Kenya Power argued that it does not disconnect power arbitrarily and that disconnections occur only after bills accrue, notices are issued, settlement is attempted and internal regulatory requirements, including a demand letter, are observed.

The court noted that the silence of the Attorney General and the county on a matter of “this constitutional importance” was regrettable.

The county government of Nairobi and the Council of Governors had been named as interested parties in the case.

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