GAZETTE NOTICE NO. 4554

the following issues, failing which the Commission would set down the dispute for hearing under Rule 15 of the Electric Power (Complaints and Dispute Resolution) Rules, 2006— (a) A counter offer to the Complainant‘s claim for damages of KSh. 1,888,948.10, and (b) A detailed action plan to prevent any further or future power supply interruptions, fluctuations and low voltage problems at the Complainant‘s premises. 9. The Respondent failed to respond to the Commission‘s said letter dated 11th September, 2008 and vide a letter dated 29th October, 2008 the Commission informed the parties that it would set down the dispute for hearing. 10. In the said dispute filed with the Commission on 3rd May, 2007, the Complainant seeks against the Respondent the following reliefs— (a) That the Respondent do forthwith take remedial and/or corrective action to ensure that the complaint is permanently resolved and that the Complainant receives regular and uninterrupted power supply and that the aforesaid power supply interruptions and fluctuations do not recur. (b) That the Respondent do forthwith pay damages to the Complainant in the sum of KSh. 1,888,948.10 as set out above. (c) That the Respondent do pay to the Complainant the legal and incidental costs incurred in lodging this complaint. 11. The Complainant has provided the makeup of the amount of KSh. 1,888,948.10 sought under paragraph 10 (b) above as follows— (a) KSh. 773,575.10 being the equipment repair and replacement charges, routine maintenance, installation of delay mechanisms and cost of wiring the main contactors. (b) KSh. 1,115,373.00 being the cost of diesel utilized by standby generators during the time in which electric power was interrupted. 12. The damages aforesaid were, according to the Complainant, occasioned by the negligent, reckless and lackluster manner in which the Respondent handled the dispute in that it failed to - (a) Issue the Complainant with the necessary notice as required by law before any scheduled disruption of power supply, (b) Adequately address the power supply interruption and fluctuation problem when the same were reported, thus recurrence, (c) Investigate and determine the real cause of the frequent power supply fluctuations, blackouts and/or interruptions so as to provide a permanent solution, (d) Take seriously the numerous complaints raised by the Complainant as evidenced by its consistent failure to respond to correspondence from the Complainant, (e) Respond in good time on being informed of power supply interruptions and fluctuations, (f) Ensure that the quality of service offered by its maintenance crew and managers is helpful in the circumstances, and (g) Put in place adequate mechanisms or systems to ensure timely detection and correction of power supply fluctuations, blackouts and/or interruptions with a view to preventing them so as to avoid damage to consumers. 13. In its response, the Respondent admitted that there were power interruptions and the same did not affect the Complainant‘s supply only but affected the main line supplying the general area where the Complainant‘s premises are situated. That it dealt with the Complainant‘s problem promptly, carefully and professionally. 14. The Respondent denied the Complainant‘s averments that the Respondent was negligent, reckless and lackluster in the manner in which it handled the dispute, and stated that the— (a) Interruptions being unplanned or non-scheduled, the alleged notice to the Complainant could not arise, (b) Respondent promptly addressed adequately the limited interruptions and fluctuations of power along the main power supply line, (c) Respondent investigated and permanently solved the limited interruptions and fluctuations of power, (d) Respondent took seriously the complaints by the Complainant and addressed the same promptly and adequately, (e) Respondent did respond in good time to the complaints by the Complainant, (f) Respondent always ensured quality service by its maintenance crew and managers to all its customers at all times including the Complainant, and (g) Respondent had in place clear and working mechanisms ensuring timely detection and correction of power fluctuations and interruptions. 15. The Complainant filed with the Commission the following pleadings; (a) Complaint dated 3rd May, 2007; (b) Rejoinder dated 10th March, 2009; (c) Written Submissions dated 30th March, 2009; and (d) Supplementary Written Submissions dated 25th February, 2011. 16. On its part, the Respondent filed with the Commission the following pleadings; (a) Response to the Complaint dated 18th February, 2009; (b) Written Submissions dated 10th March, 2009; and (c) Supplementary Written Submissions dated 4th March, 2011. 17. The hearing of dispute by way of oral evidence commenced before the Commission on 22nd May, 2009 and was heard further on 11th September, 2009. In the course of the hearing, the Commission requested the parties to negotiate some settlement. However, no settlement was reached for a considerable period of time and the hearing was fixed and completed on 18th February 2011. 18. The issues not in dispute in this Complaint are— (a) The Respondent did not respond to the Complainant‘s letters until 15th March, 2006, a period of over 10 months. (b) The Complainant had experienced power interruptions over a period of 2 years between 29th April 2005 and 3rd March, 2007. (c) The Respondent resolved the power interruptions problems with effect from 3rd March, 2007, facts confirmed by Mr. George Karanja, the Complainant‘s Caretaker in his oral evidence before the Commission. 19. On the basis of the facts in paragraph 18 (c) above, the Commission makes a finding that the Complainant‘s first relief sought in its complaint dated 3rd May, 2007 has been overtaken by events. Consequently, the said relief, viz, that the Respondent do forthwith take remedial and/or corrective action to ensure that the complaint is permanently resolved and that the Complainant receives regular and uninterrupted power supply and that the aforesaid power supply interruptions and fluctuations do not recur, is hereby disposed of. 21st April, 2011 THE KENYA GAZETTE 1215 20. The main issues in dispute in this Complaint are— (a) Whether the Respondent was negligent for failing to resolve the Complainant‘s power interruptions and/or failing to respond to the Complainant‘s letters dated 11th May 2005 , 15th June 2005, 26th August, 2005, 8th November, 2005 and 9th March, 2006 until 15th March, 2006. (b) Whether the Complainant is entitled to compensation amounting to KSh. 773,575.10 being the equipment repair and replacement charges, routine maintenance, installation of delay mechanisms and cost of wiring the main contactors in form of damages. (c) Whether the Complainant is entitled to compensation amounting to KSh. 1,115,373.00 being the cost of diesel utilized by standby generators during the time in which electric power was interrupted in form of damages. (d) Whether the Commission has jurisdiction to award the above damages as prayed for by the Complainant in his Complaint, in any event. 21. Whether the Respondent was negligent for failing to resolve the Complainant‘s power interruptions and/or failing to respond to the Complainant‘s letters dated 11th May, 2005 , 15th June, 2005, 26th August, 2005, 8th November 2005 and 9th March, 2006 until 15th March, 2006. (a) If the Respondent had attended to the Complainant‘s power interruptions in a timely and conscientious manner, this complaint would not have been filed. Consequently, the Commission has no hesitation in finding that the Respondent was negligent in providing uninterrupted services to the Complainant. 22. Whether the Complainant is entitled to compensation amounting to KSh. 773,575.10 being the equipment repair and replacement charges, routine maintenance, installation of delay mechanisms and cost of wiring the main contactors. (a) The Complainant has attached a copy of a receipt in the sum of KSh. 570,100.55 which appears at page 27 of the Complaint as Annex ―K‖ in support of the repair of Chiller II. (b) In his oral evidence on this item, the Complainant‘s witness a Mr. Stephen Mutisya, a refrigeration and air conditioner technician from Hall Equatorial Ltd, informed the Commission how he was called by the Complainant sometimes in July, 2006 because the Chiller had broken down. He stated that the motors in the compressor and the display control card had burnt. As a result, he recommended and carried out an overhaul of the compressor by installing the parts set out in a copy of their letter dated 25th July, 2006 which appears at page 16 of the Complaint. The witness attributed the damaged components in the Chiller to power fluctuations and interruptions. Mr. Mutisya denied, under cross examination, that the parts replaced on the Chiller were not burnt and were due to wear and tear. (c) In further proof of the claim under this head, the Complainant has attached copies of the quotations, invoices, receipts and field service reports at pages 29 to 44 of the Complaint in support of repairs to the standby generator, installation of delay mechanisms, wiring of the main contactors, trickle charger, replacement of batteries, replacement of fuses, capacitors, exchange fan and for replacement of various types of bulbs. (d) In his oral evidence on the repairs to the standby generator, the Complainant‘s witness a Mr. Paul Nganga Ndungu, a technician from Ferguson Power E. A. Ltd, informed the Commission that he had been called by the Complainant after the generator had failed to start on several occasions. That upon inspection he discovered that some components to the control panel had been burnt. As a result, he recommended and the generator was installed with delay mechanisms, wiring of the main contactors, trickle charger and replacement of 2 batteries. The witness attributed the damage to these items to power fluctuations and interruptions. Under cross examination, Mr. Ndungu admitted that the installation of the delay mechanism was to protect the generator from malfunctioning and was a form of upgrading. He further admitted that the 2 batteries were replaced as they were old as stated in their letter dated 3rd July 2006 appearing at page 40 of the complaint. (e) After careful consideration of the Complainant‘s claim under this head, the Commission finds, on a balance of probabilities, that the Complainant has proved that the Chiller had broken due to power fluctuations and interruptions. 23. Whether the Complainant is entitled to compensation amounting to KSh. 1,115,373.00 being the cost of diesel utilized by standby generators during the time in which electric power was interrupted in form of damages. (a) The Complainant has attached copies of receipts and invoices in the sum of KSh. 1,115,373.00 which appear at pages 45 to 63 of the Complaint as Annex ―L‖ in support of the cost of diesel utilized by standby generators. (b) In his oral evidence on this item, the Complainant‘s witness a Mr. George Karanja, the Caretaker of the premises hereof informed the Commission that the Complainant experienced frequent power fluctuations and interruptions between April 2005 and April 2007 and during that period they utilized a lot of diesel on the generators. Under cross examination, Mr. Karanja admitted that there was no comparative data showing power bills when the power supply was normal vis a vis when the generator was utilized to justify diesel expenses claimed. In addition the Complainant did not isolate the costs of running the generator on occasions other than due to power fluctuations. (c) The finding of the Commission on this head of claim is that, in the absence of comparative data as alluded to by the Respondent‘s counsel, it is difficult to make a fair determination hereof. Consequently, the Commission rejects the Complainant‘ claim amounting to KSh. 1,115,373.00 being the cost of diesel utilized by the standby generators. 24. Whether the Commission has jurisdiction to award the above damages as prayed for by the Complainant in his Complaint, in any event (a) The Respondent‘s counsel has raised this issue in his supplementary submissions dated 4th March 2011 and stated that the Commission has held in its previous findings that it has no jurisdiction to award damages. (b) The Respondent‘s counsel has relied upon the Complaint of Joseph Kinyanjui Mwai T/A Sandworth Printing and Packaging –vs- Kenya Power and Lighting Company Limited: Dispute N0.2 of 2009 (