The High Court has rejected an attempt by Kenya Power to rope in the Ethics and Anti-Corruption Commission (EACC) in a Sh476 million billing dispute with advertising firm Scanad Kenya Limited, a subsidiary of WPP Scangroup, amid claims of missing documents seized by the agency’s investigators.
The court ruled that the commission has no direct stake in the commercial dispute and should not be drawn into a purely contractual issue.
Kenya Power had sought to have the EACC enjoined in the suit as an interested party and a subsequent order compelling it to release documents seized during investigations into the marketing and advertising contract.
However, the court dismissed the request, stating that the utility firm should pursue the missing documents through existing legal channels instead.
It ruled that the threshold for joining had not been met and that Kenya Power should use available legal avenues to obtain the records.
The dispute stems from two advertising and media services contracts between Scanad and the State-owned electricity distributor.
Scanad sued Kenya Power, claiming Sh476 million in unpaid invoices and alleging breach of contract.
Kenya Power filed a defense but argued that it could not complete pre-trial disclosure because key original documents—including local purchase orders, delivery notes, and invoices—had been taken by the EACC during criminal investigations between 2019 and 2020.
When the documents were returned in July 2023, these originals were missing.
Kenya Power contended that without these records, it could not finalise witness statements or assemble trial bundles, thereby undermining its right to a fair hearing in a case involving substantial public funds.
To resolve the impasse, the company asked the court to include the EACC as an interested party, order the agency to provide copies of the missing documents, and prevent it from withholding the originals. The court declined the request.
Scanad opposed the application, arguing that the EACC had no role in a private contract dispute and that its inclusion would introduce unnecessary criminal elements and delay the commercial trial.
The court agreed, emphasizing that an interested party must demonstrate a clear and direct stake in the case and show potential prejudice if excluded.
“The defendant (Kenya Power) has not made out a case for enjoining the EACC,” the court stated, noting that the commission’s role was purely investigative and “separate from the contractual dispute” before the court.
It further clarified that the outcome of the civil suit would not affect the EACC’s constitutional or statutory mandate.
Additionally, the court pointed out that it is typically the intended party that should seek to join a case, yet the EACC had neither applied nor expressed any interest in being involved.
Regarding Kenya Power’s claim of prejudice, the court distinguished between the absence of documents and the absence of the EACC as a party.
It ruled that the real issue was access to records, not the expansion of litigation. The court outlined alternative legal remedies available to Kenya Power, including provisions under the Civil Procedure Act, the Civil Procedure Rules, and the Access to Information Act, to compel the production of documents from public bodies.
The court dismissed Kenya Power’s application, ensuring that the case remains focused on the core issues of unpaid invoices, contract performance, and alleged breaches.
