The High Court has imposed new conditions on Kenya Power before it can disconnect electricity to essential installations operated by county governments.
In a ruling delivered by Justice Jairus Ngaah, the court ruled that Kenya Power must first exhaust prescribed legal and intergovernmental procedures before disconnecting electricity.
The ruling followed a petition filed after Kenya Power disconnected electricity to several Nairobi County offices over unpaid bills.
Power was later restored following mediation convened by the Head of Public Service, according to the court.
Kenya Power Issuance of 30 Days’ Notice
Under the court’s order, Kenya Power cannot disconnect or threaten to disconnect essential county installations because of a billing or financial dispute unless it first gives the affected county at least 30 days’ written notice and public notice.
The requirement applies to facilities including hospitals and other health facilities, water and sewerage installations, fire stations, mortuaries, and street lighting.
Additionally, the High Court found that the February 2025 Nairobi disconnection was unlawful, procedurally unfair and inconsistent with Articles 10, 47 and 189(3) of the Constitution.
Further, the judge argued that threatened disconnections of essential installations could amount to threats to constitutional rights, including the rights to life, dignity, healthcare, water, sanitation, and emergency medical treatment.
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Treasury and Dispute Resolution
In the ruling, Kenya Power was ordered to report outstanding electricity bills to the Cabinet Secretary for the National Treasury under Section 161 of the Energy Act.
The provision requires a licensee with outstanding bills attributable to a county government or other government agency to report those debts to the Treasury.
After reporting under the law, the Treasury should then report them to Parliament for necessary appropriation.
Additionally, Kenya Power must also pursue consultation, negotiation, and alternative dispute-resolution mechanisms under Article 189 of the Constitution and sections 31 to 35 of the Intergovernmental Relations Act.
The court found no evidence that Kenya Power had reported Nairobi County’s outstanding electricity bills to the National Treasury before disconnecting the county’s power.
“ As to article 43, it is deposed that no incident report, no affidavit from any health facility, no medical evidence, and no clear causation linking any disconnection to a denial of health services has been placed before the court; as to article 35, no request for information and no refusal has been shown; and as to article 47, disconnection for non-payment is a lawful contractual and statutory remedy under section 160 of the Energy Act,” part of the ruling read.
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What the High Court Ruling Means
Justice Ngaah emphasized that the ruling does not extinguish debts owed to Kenya Power or prevent the utility from pursuing legitimate claims.
The court also classified the dispute between Kenya Power and Nairobi County as an intergovernmental dispute, rejecting Kenya Power’s argument that its status as a listed company placed it outside Article 189 obligations.
Justice Ngaah also noted that the national government controls 50.1 percent of Kenya Power and appoints the majority of its board.
Kenya Power and Nairobi County were directed, with the facilitation of the Council of Governors and the Intergovernmental Relations Technical Committee, to refer their outstanding mutual claims to alternative dispute resolution within 60 days of the judgment.
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