GAZETTE NOTICE NO. 2897

under the Energy Tribunal (Procedure) Rules (hereinafter referred to as ―the Procedure Rules‖) but is in the form of a Memorandum of Appeal accompanied by a Complaint. The filed Memorandum of Appeal is rubberstamped, with the Appellant‘s signature inside the rubberstamp impression. However, it bears no date. The accompanying Complaint is dated 8th April, 2009, and is signed by the Appellant. In his affidavit of service, dated the 24th August, 2009, the Appellant has deponed that he served the appeal upon the Respondent on the same day. The Respondent acknowledges service. Under Rule 16 (1) of the Rules, the Respondent was required to file a response to the appeal within 10 days from the date of service. On the 1st September, 2009 the Respondent filed a Preliminary Objection, dated the same day. Two days later, on the 3rd September, 2009, the Respondent filed a Statement of Response in the form prescribed under the Procedure Rules and on 10th September the Appellant filed a reply to the Preliminary Objection. The Preliminary Objection was fixed for the hearing on the 24th September, 2009. On that day, the Appellant appeared in person and applied for an adjournment to enable him engage counsel to represent him. The application for adjournment was not opposed by the Respondent an adjournment was granted. Hearing of the Preliminary Objection was stood over to the 2nd October, 2009. The parties appeared before us on 2nd October, 2009, with Mr. Kamau representing the Appellant and Mr. Fraser appearing for the Respondent. Counsel for the Respondent urged the Tribunal to uphold the Preliminary Objection and strike out the appeal. Mr. Kamau conceded that the appeal was filed outside the prescribed period, but he pleaded with the Tribunal to enlarge time and deem the appeal as having been filed on time. The Tribunal ruled that ―the best option in this matter, considered in its peculiar circumstances was that each party be heard fully on the merits of their case‖. The Tribunal further directed that ―for the larger interests of justice to be served, we hereby direct that the issues raised in the Preliminary Objection will be argued within the Appeal itself, that is to say in reply to the Appeal in addition to all other ground in opposition to the Appeal‖. The Tribunal accordingly directed the parties to file written submissions. The Appellant was to file his submissions by 16th October, 2009 and the Respondent was to file replying submissions by 26th October, 2009. The matter was fixed for hearing on 6th November, 2009 when the parties were expected to highlight their written submissions. The Appellant filed his submissions on 14th October, 2009, through the firm of Tim Okwaro and Company Advocates, who had replaced Kibanya & Kamau Advocates. The Respondent filed its submissions on the 26th October, 2009. When the matter came up for hearing on 6th November, 2009, it was noted that on 3rd November, 2009, the Appellant had filed a reply to the Respondent‘s written submissions. Counsel for the Appellant applied for leave for the Appellant‘s Reply to the Respondent‘s submissions to be deemed as being properly on record, which was granted. Grounds of Appeal & Response The grounds of appeal are contained in the Appellant‘s undated Memorandum of Appeal and are reproduced verbatim as hereunder: ―1. THAT the Commissions decision is not based on reasoning and is based not on the evidence adduced in the complaint, the submissions, replies to submissions and/or the Appellant rejoinder but on extraneous facts. 2. THAT the Commissions decision is based largely if not entirely on the Appellants complaint letter against corrupt official‘s of the Respondent dated 2nd January 2008 addressed to His Excellency the President and that of 15th January 2008 addressed to the Permanent Secretary Ministry of Energy respectively. 3. THE Commission‘s finding that the Appellant‘s averment over the inherited bills for KSh. 41,002 is itself baseless as the Appellant‘s several readjustment of the bills from KSh. 80,782 to KSh. 53,535.78 then by a further KSh. 7,778.70 and lastly to KSh. 42,000 is by itself both express and implied admission of validity of the claim. 4. THE Commission‘s finding under section 57 (3) (a) of the Energy Act 2006 is itself totally untenable as whereas the electric supply line shall be the property of the Respondent its use and/ or must with the knowledge and consent of the customer (Read Appellant) which in any case must not cause prejudice to the customer‘s full user of the electricity supply such as causing low voltage resulting in loss of business. 5. THE Commission‘s finding that the Respondent is a stranger to the matters of sale of plot containing the subject-matter herein from one John Karegi Njoroge to the Appellant leading to the issue or previous and/or inherited electricity bill of KSh. 41,002.80 is itself totally unsupported by cogent evident as there is an express admission of the same in paragraph 4 of the sale agreement between the Appellant the vendor dated 8th May, 1994. 6. THE Commission erred in not making a clear and concise decision on the issue of 3-phase electric power supply as it has ignored to deliberate on whether or not the Appellant paid the sum of KSh. 62,392.50 and if so was the Appellant then not entitled to either a refund of the same with interest or to have the same connected or supplied to him. 7. THE Commission erred in holding that compensation by way of damages was not awardable by the Commission and failed to fully understand and embrace the opinion of Mr. Mwenesis(sic) as much as that of the Appellant‘s counsel Mr. Ndungu Wariuki that in terms of sections 8 and 52 of the Energy Act, damages are payable to any person for any bodily injuries occasioned by the Respondent, his property or his interests. 8. THE Commission‘s decision in partial(sic) as it completely ignores to address or consider the issue raised in the Appellants general submission, rejoinder and reply to the Respondents written submission but rather giving a lot of weight to those of the Respondent. ― We understand the Appellant to be asking the Tribunal to set aside the decision of the Commission and to grant the prayers appearing at paragraph 57 of the Complaint filed together with the Memorandum of Appeal. These prayers are substantially the same as those which the Appellant had sought from the Commission. The Respondent opposes the appeal on the following grounds: 1. The Tribunal does not have the jurisdiction to hear the appeal because it was filed outside the period prescribed in the Energy Act (hereinafter referred to as ―the Act‖) and contrary to the Procedure Rules. 2. The Appeal has no merit. 3. The jurisdiction of the Commission does not extend to the power to award of damages. Issues for Determination The Tribunal would summarize the issues for determination in this appeal as follows: 1. Whether the Tribunal has jurisdiction to entertain this Appeal; 2. Whether the Commission erred in holding that the Appellant was responsible for the payment of the ―inherited‖ electricity bill of KSh. 41,002.35. 3. Whether the Commission was right in rejecting the Appellant‘s request for a declaration that the Respondent had made ―illegal‖ connections from the Appellant‘s supply line without the Appellant‘s consent. 18th March, 2011 THE KENYA GAZETTE 763 4. Did or not the Commission erred in failing to make a clear and concise decision on the 3- phase power supply and in ignoring to deliberate on whether the Appellant had paid to the Respondent the sum of KSh. 62,392.50 and whether the Appellant was entitled to a refund of the same. 5. Whether the Commission erred in holding that it had no jurisdiction to award damages. 6. Whether or not the decision of the Commission is supported by the evidence and reasoning. The Tribunal’s Jurisdiction The issue of the Tribunal‘s jurisdiction was taken by counsel for the Respondent both in the Notice of Preliminary Objection and in the Statement of Response to the appeal. Counsel the Respondent has further addressed the issue in the written submissions. It is not necessary here to repeat the Respondent‘s arguments; suffice it to state that those arguments are to the effect the Appeal is not properly before the Tribunal and is incompetent for having been filed outside the prescribed period and contrary to the Procedure Rules. The Appellant‘s response was that he is a layman and therefore unfamiliar with the rules of procedure before the Tribunal; and, consequently, his failure to comply with the legal requirements was not deliberate. In regard to the appeal having been filed out of time we note that the Appellant filed this appeal in person. He has requested the Tribunal to exercise its discretion and enlarge time. We believe that we can exercise this discretion even though the request to extend time was made after the expiry of the prescribed time for filing the appeal (see s.59 of the Interpretation and General Provisions Act). We are satisfied, upon consideration of all the material placed before us, that this is a proper case to extend time, in excercise our discretion under section 26 of the Energy Act. We hereby enlarge time such that the appeal, filed on 9th July, 2009, is deemed to have been duly filed within the prescribed period. With regard to the Appellant‘s failure to comply with the Procedure Rules, we note that this complaint relates to the form in which the Appeal was brought before the Tribunal. The provisions of paragraph 12 (3) of the Third Schedule to the Act requires the Tribunal to do substantial justice without undue regard to technicalities. We are satistfied that the failure of the Appellant‘s documents to comply with our Rules has not prejudiced the Respondent or occasioned any miscarriage of justice. We are therefore inclined to overlook those procedural lapses in the peculiar circumstances of this appeal. In the light of what we have said above, we now hold that the Tribunal has jurisdiction to hear and determine this appeal on its merits. “Inherited” Bills In his submissions filed through his counsel on 14th October, 2009, the Appellant is silent as to why he is of the view that the decision of the Commission on the issue of the ―inherited‖ bills is faulty. Instead, the Appellant‘s submissions makes very general complaints against the Commission on the issue of the ―inherited‖ bills. On his part, counsel for the Respondent supports the decision of the Commission and argues that the decision is correct. The Tribunal has perused the original record of proceedings before the Commission, including the parties‘ submissions and the evidence tendered. The Tribunal observes that the evidence produced by the Appellant before the Commission, comprised an agreement of sale of land, dated 8th May, 1994, between the Appellant and a third party; and an electricity supply agreement dated 20th April, 1994, between the Appellant and the Respondent. On the face of it, the latter agreement was for the supply of electricity to residential premises. The Tribunal is satisfied that the Commission dealt with the issue of ―inherited‖ bills exhaustively. The evidence before the Commission overwhelmingly showed that the Appellant had incurred the so called ―inherited‖ bills. The Tribunal is satisfied that the Commission arrived at the right decision on the evidence before it. “Illegal” Connections The Appellant submitted before the Tribunal and before the Commission that the Respondent wrongly supplied other consumers from the supply line connected to a pole within his premises, leading to low voltage and poor quality of supply of electric power thereto. The Commission in its Decision had the following to say with regard to the location of the electric pole.: ―However, it is noteworthy that during the meetings of the negotiations between the Complainant and the Respondent convened by officers of the Commission referred to hereinabove, a survey was to be carried out on July 6, 2007 (as shown at page 81 of the minutes of the meeting of 3rd July 2007) in the presence of both parties to ascertain the position of the electricity supply line in relation to the Complainant‘s plot boundary.‖ The survey was undertaken in the presence of the parties to the dispute. The result of that survey was that the Complaint (now Appellant) had encroached onto a road reserve: The supply line pole was found to be outside the Appellant‘s compound. During the hearing before the Commission the Appellant did not produce any other evidence to show that the supply pole was within his premises. The Appellant argued before us that he had produced a valuation report which the Commission did not take into consideration. During oral submission by his counsel and long after the closure of pleadings, the Appellant attempted to produce before us a purported surveyor‘s report. The Tribunal refused to admit the document because it had not been part of the evidence before the Commission. The Tribunal also held the view that this was an attempt by the Appellant to ambush the Respondent at a very late stage in the proceedings. We have perused the original record of the Commission and note that the valuation report the Appellant allegedly produced is an incomplete document. In any event, we do not think that it is of any evidential value in terms of determining the site of the electric power pole. Consequently, we see no reason for departing from the finding of the Commission in regard to the position of the electric supply line and the electric power pole. In other words, we concur with the Commission that these are on a road reserve and not within the Appellant‘s premises. We further concur with the Commission‘s finding that the consent of the Appellant was not necessary for the other consumers to be connected when the supply point to those other consumers was on a road reserve. The Appellant had also claimed before the Commission that the supply to the other consumers had adversely affected him. He alleged that supply to other consumers had led to a reduction in voltage levels of the electricity supply to his premises. The Commission appears not to have made any specific finding on the issue. We have examined the record of the proceedings before the Commisson on the issue. We are not persuaded that the Appellant adduced sufficient evidence before the Commission to show that the supply of electricity to third parties was the cause of low voltages. The Commission’s Jurisdiction to Award Damages The Appellant argued before us that the Commission erred in holding that it had no jurisdiction to award damages. He argued that the jurisdiction is conferred the provisions by of rule 6 of the Electric Power (Complaints and Disputes Resolution) Rules, 2006 (L.N. 106 of 2006) (hereinafter referred to as ―the Electric Power Rules‖) and sections 5, 6, 8, 52, 61 and 63 of the Act. The Respondent maintains that the Commission has no jurisdiction to award damages either under the Electric Power Rules or under the Act. We have considered the parties‘ submissions on the issue. We have also examined the relevant provisions of the law. Rule 6 of the Electric Power Rules provides as follows: ―6. The Board is available to assist complainants in the resolution of complaints in the following matters— (a) billing; (b) damages; (c) disconnection; (d) health and safety; (e) installations; (f) power interruptions; (g) licensee practice and procedures; (h) metering; (i) new connections and extensions; (j) reconnections; (k) quality of service; THE KENYA GAZETTE 18th March, 2011 (l) quality of supply; (m) tariffs; (n) way leaves, easements or rights of way; and (o) any other matter required to be regulated under the Act.‖ The ―Board‖ refers to the Commission which is the successor to the Electricity Regulatory Board. In our view, rule 6 of the Electric Power Rules does not confer jurisdiction upon the Commission to award damages. The provision relates to the types of complaints which an aggrieved person can take to the Commission for investigation and resolution. Our understanding and interpretation of the expression ―damages‖ in rule 6 (b) is that it simply means an injury or a loss suffered by the complainant. Sections 5 and 6 of the Act deal with the functions and powers of the Commission. There is nothing in these two sections giving power to the Commission to award damages. It is our considered view that section 5 and 6 of the Act emphasise more on the regulatory role of the Commission in the energy sector and that any quasi–judicial functions are primarily incidental and are be invoked to supplement the regulatory role of the Commission. If Parliament had intended to confer such jurisdiction on the Commission, it would have expressly done so. With regard to section 8 of the Act, we are of the view that the provision is concerned with the Commission‘s liability to pay compensation or damages for injury or loss occasioned by the Commission to a person or property. It has nothing to do with the jurisdiction of the Commission to award damages to a complainant. We are satisfied that section 52 of the Act relates to a licensee‘s liability to pay compensation or damages. That section does not give the Commission power to assess or award damages payable by a licensee. We agree with counsel for the Respondent that the jurisdiction to assess or award damages, payable by the Commission or a licensee for liability under the Act, remains with a court of law in exercise of its civil jurisdiction. We do not see how sections 61 and 63 have any application in conferring jurisdiction to the Commission to award damages. Section 61 deals with instances when supply of electricity may be refused or disconnected, while section 63 deals with the making of subsidiary legislation in form of rules and regulations. We are therefore satisfied that the Commission was right in holding that it had no jurisdiction to award damages. If we are wrong in finding that the Commission did not have jurisdiction to award damages, we nevertheless find that the Appellant did not adduce sufficient evidence to prove the damages claimed. 3-Phase Power Supply At paragraph 33 of the Complaint filed in the Commission, the Appellant alleged that he had paid to the Respondent the sum of KSh. 39,372.50 as a deposit for connection of a 3-phase electricity supply. In the Complaint, the Appellant however did not make any specific prayer regarding the alleged application for a 3-phase electricity supply. As far as we can discern from the record of the Commission, the Appellant first addressed the issue of the 3-phase power supply in his written submissions dated the 8th December, 2008. The Appellant‘s contention in those submissions appears to be that he had sustained loss of business due to the Respondent‘s failure to connect him with the 3-phase power supply. Before us the Appellant has complained that the Commission did not address itself to the issue of the 3-phase power supply. We have reviewed the decision of the Commission and cannot find any specific reference to the issue of the 3-phase power supply. However, as we have earlier noted, the issue was raised before the Commission to support the Appellant‘s claim for loss of business. There was no specific request made to the Commission to order the Respondent to either provide the power supply or to refund the deposit. We are satisfied that this question of the power supply was not made an issue before the Commission and the Commission did not need to address it. In any event, on examination of the record of the Commission we are satisfied that the Appellant did not prove that he had paid for a 3-phase power supply. The Commission’s Decision We have examined the record of the Commission and are satisfied that it meticulously and exhaustively dealt with all the issues placed before it for adjudication. In our view, except on the issue of 3-phase power supply which we have dealt with earlier, the Commission considered all the evidence before it and made correct findings both on the facts and on the law. Order We have come to the conclusion that there are no valid grounds for interfering with the decision of the Commission. Consequently, we find that this appeal is without any merit and we dismiss it with costs to the Respondent. Orders accordingly. Dated at Nairobi this 20th day of 2009. MBAGE N. NG‘ANG‘A, Chairman. KIPKETER ARAP CHUMO, SHEM ARUNGU-OLENDE, NYAGA KAMUNDI, Members. Delivered in the presence of Joseph Kinyanjui Mwai in person for the Appellant and K. A. Fraser for the Respondent.