Hospitals, fire stations and other vital county services will not be exposed to electricity shutdowns over unpaid bills without Kenya Power first following strict legal procedures, the High Court has ruled.
The decision requires the utility to use government dispute resolution channels, report outstanding county electricity debts to the National Treasury and provide at least 30 days’ written and public notice before disconnecting power.
The ruling followed a legal battle that began after Kenya Power switched off electricity to several Nairobi County offices on February 14, 2025, citing unpaid bills. The electricity was later restored after Head of Public Service Felix Koskei stepped in to mediate the dispute.
Charles Waithaka Rubia moved to court in the public interest, challenging the manner in which the utility had handled the dispute. The Energy Cabinet Secretary and Attorney-General were named as respondents, while Nairobi County and the Council of Governors participated in the case as interested parties.
The disagreement involved millions of shillings in claims between the county government and the electricity supplier. Nairobi County maintained that Kenya Power owed it Sh4.8 billion in wayleave fees, while the utility placed the county's outstanding electricity bill at Sh3 billion. Nairobi disputed the amount claimed by the power company.
Tensions between the two sides later spilled into other county services. Nairobi County blocked access to Kenya Power premises, cut water and sewer services and dumped garbage outside Stima Plaza as the dispute intensified.
The High Court determined that the disagreement went beyond an ordinary commercial debt dispute. It said the competing claims involving electricity payments, wayleave fees, land rates and other related matters amounted to an intergovernmental dispute under the Constitution and the Intergovernmental Relations Act.
Kenya Power had argued that Article 189 of the Constitution did not apply to it because it is a listed company rather than a government department or agency. The article requires the national and county governments to work together and resolve disputes through alternative mechanisms.
The court disagreed with that argument after considering the government's position in the company. The national government owns 50.1 per cent of Kenya Power and appoints the majority of its board.
"In substance, the first respondent is an agency and instrument of the national government in the electricity sector. Form must yield to substance," the court said.
The judge added that Kenya Power could not rely on its corporate structure to escape constitutional duties.
The court said the corporate veil could not be used "to exempt an organ of national government from a constitutional obligation of comity."
The judgment also examined Section 161 of the Energy Act, which provides a procedure for dealing with electricity debts owed by government bodies. Under the law, outstanding government electricity bills are to be reported to the National Treasury, which then reports them to Parliament for appropriation.
According to the court, Kenya Power had not shown that it reported Nairobi County's outstanding bills to the Treasury before disconnecting electricity.
The February 14, 2025 shutdown was therefore declared unlawful because the utility had not first exhausted the intergovernmental mechanisms provided for under Section 161 of the Energy Act. The court also found that proper public notice had not been given before the disconnection.
The case also raised concern over threatened shutdowns involving some of Nairobi's most important public facilities.
The petitioner said Kenya Power had threatened to disconnect Pumwani Maternity Hospital, mortuaries, fire stations and facilities used to support sanitation operations at night.
The utility did not deny those threats on oath, the court said.
Justice Jairus Ngaah ruled that such action could affect fundamental rights, including the rights to life, dignity, healthcare, water, sanitation and emergency medical treatment.
"A threat by a monopoly supplier, with a proven record of carrying such threats out, to disconnect a maternity hospital is a threatened violation of the rights to life," Justice Jairus Ngaah said.
The court further found that the earlier disconnection had not followed a fair procedure. Kenya Power failed to present notices or demand letters relating to the February action, leaving the court without evidence that the county had been properly warned before the electricity was switched off.
The ruling, however, did not wipe away Nairobi County's debt claim or prevent Kenya Power from pursuing money that may lawfully be owed by the county.
Instead, the court ordered both sides to use alternative dispute resolution to settle their outstanding claims within 60 days. The Council of Governors and the Intergovernmental Relations Technical Committee were directed to help facilitate the process.
Kenya Power has also been prohibited from disconnecting or threatening to disconnect hospitals, health facilities, water and sewerage installations, fire stations, mortuaries and street lighting because of county financial disputes unless the required legal steps have been completed.
The court did not issue an order for reconnection because electricity to the affected facilities had already been restored.
It also rejected claims concerning access to information and consumer rights after finding that there was not enough evidence to support them.