Kenya Power has been barred from disconnecting electricity to essential county government facilities, including hospitals, fire stations and other critical public services across the county, over unpaid bills.
The High Court ruled that the State utility must report county debts to the Treasury, pursue dispute resolution and give 30 days’ written and public notice before disconnecting county facilities over unpaid bills. The ruling followed a February 14, 2025 dispute with Nairobi County after Kenya Power disconnected power to several county offices over unpaid bills. Power was restored after mediation by Head of Public Service Felix Koskei.
A petitioner, Charles Waithaka Rubia, sued in the public interest, naming the Energy Cabinet Secretary and Attorney-General as respondents. Nairobi County and the Council of Governors were interested parties.
Nairobi County said Kenya Power owed it Sh4.8 billion in wayleave fees, while the utility said the county owed Sh3 billion in electricity bills. The county disputed the figure.
Chief of Staff and Head of Public Service Felix Koskei.
Photo credit: File| Nation Media Group
The dispute escalated, with the county blocking access to Kenya Power premises, cutting water and sewer services and dumping garbage outside Stima Plaza. The court found the dispute over electricity, wayleave fees, land rates and related claims was an intergovernmental dispute under the Constitution and the Intergovernmental Relations Act.
Kenya Power had argued that, as a listed company rather than a government entity, it was not bound by Article 189, which requires the two levels of government to cooperate and resolve disputes through alternative mechanisms.
The court rejected the argument, noting that the national government controls 50.1 per cent of Kenya Power’s shares 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, adding that the corporate veil could not be used “to exempt an organ of national government from a constitutional obligation of comity.”
The court also relied on Section 161 of the Energy Act, which requires outstanding government electricity bills to be reported to the National Treasury for onward reporting to Parliament for appropriation. In the judgment, the court said there was no evidence that Kenya Power had reported Nairobi’s outstanding bills before disconnecting the county.
It held that the February 14 disconnection was unlawful because Kenya Power had not first used the intergovernmental mechanisms under Section 161 of the Energy Act or given adequate public notice.
The court reached a different conclusion over threatened disconnections. The petitioner told the court that Kenya Power had threatened to disconnect Pumwani Maternity Hospital, mortuaries, fire stations and installations supporting night-time sanitation operations.
Kenya Power did not deny those threats on oath, the court said. It found that such threats amounted to threatened violations of 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.
Justice Jairus Ngaah.
Photo credit: Dennis Onsongo | Nation Media Group
The court also found the disconnection procedurally unfair because Kenya Power did not produce notices or demand letters for the February action.
The judgment, however, does not cancel Nairobi County’s debt or prevent Kenya Power from pursuing lawful recovery of the unpaid bill.
Kenya Power and Nairobi County were ordered, with the Council of Governors and Intergovernmental Relations Technical Committee facilitating, to refer their outstanding mutual claims to alternative dispute resolution within 60 days.
The utility was barred from disconnecting or threatening to disconnect hospitals, health facilities, water and sewerage installations, fire stations, mortuaries and street lighting over county financial disputes unless it completes the required steps.
The court declined to order reconnection because power had already been restored. It dismissed claims concerning access to information and consumer rights for lack of proof.
