Economy

Fresh bid to revive Kenya Power class action lawsuit fails

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Kenya Power workers repair a power supply line. FILE PHOTO | NMG

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Summary

  • Justice James Makau dismissed the application by Gitson Energy Ltd saying the company was not a party in the suit, which was settled by consent in October 2018.
  • The judge also dismissed a second application seeking to cross-examine lawyer Apollo Mboya on the contents of an affidavit he filed in court last year.
  • The Judge said the company was never a party to the case nor the consent, which was entered by parties in 2018, noting that the consent had a contractual effect and can only be set aside on application by parties that signed it and not third parties.

The High Court has dismissed a fresh attempt to revive a class action suit against Kenya Power over alleged inflation of electricity bills, which was settled two years ago.

Justice James Makau dismissed the application by Gitson Energy Ltd saying the company was not a party in the suit, which was settled by consent in October 2018.

The judge also dismissed a second application seeking to cross-examine lawyer Apollo Mboya on the contents of an affidavit he filed in court last year.

The Judge said the company was never a party to the case nor the consent, which was entered by parties in 2018, noting that the consent had a contractual effect and can only be set aside on application by parties that signed it and not third parties.

“It, therefore, follows that mere and circumstantial allegations of fraud, collusion by a stranger to the proceedings cannot amount to a valid ground for setting aside the consent,” the Judge said while dismissing the case.

The company and its directors James Gitau, Jerotich Seii, Robert Alai and Alvis Abenga alleged that there was fraud in the consent and the court should review it and allow them to prosecute the case.

But the judge said the company failed to demonstrate any new matter that was not within its knowledge at the time the order was made.

The Treasury together with Kenya Power, Kenya Electricity Transmission Company and the Ministry of Energy had opposed the case saying it was an attempt to reopen a case that has already been settled.

A similar case was dismissed last year by Justice Weldon Korir saying claims of fraud were hearsay.

In the initial cases, Mr Mboya and the Electricity Consumers Society of Kenya (ECSK) wanted to stop KP from recovering Sh10.1 billion for costs not reflected on 2017 bills.

He moved to court after some 900,000 customers were slapped with unusually high power bills or received fewer units for their normal monthly spend.

The suit also sought to stop Kenya Power from recovering the costs and a refund of Sh2 billion that had already been recovered.

Kenya Power, however, denied the claims and said it was implementing new billing software. But as the case was pending, Mr Mboya signed consent with the power utility company, settling the case.