Kenya Power has won the first round of the trash battle against Nairobi County and Nairobi City Water and Sewerage Company.
Justice Ann Omollo in her ruling dismissed the county’s prayer to strike out the case filed by the power supplier, which is seeking compensation for sewage dumped on its offices and water disconnection following a row over electricity and land rates.
“Thus, after my analysis of the grounds offered in support of and against the preliminary objection together with the relevant law referenced, I hold that it lacks merit and it is dismissed with costs in the cause,” ruled Justice Omollo.
The county, in its application, claimed that the row should be subjected to mediation.
However, Justice Omollo said the sections of law that the county relied on did not limit dispute resolution to Alternative Dispute Resolution (ADR) before getting to court.
She also observed that although the water tribunal could manage disputes over water resources, it possessed no authority to determine that the county had infringed upon a right to a safe and clean environment.
“Thus, the existence of alternative dispute resolution mechanisms does not automatically oust the jurisdiction of this court by dint of article 162(2) of the Constitution to hear petitions alleging violations of the Bill of Rights. Parties alleging want of jurisdiction must demonstrate the adequacy of the alternative mechanism, and which, in my view, and I so hold, a basis was not laid. Why do I say
so? A preliminary objection does not allow this court to dig into facts to ascertain the basis of the objection so that the sufficiency, for instance, the Water Tribunal cannot be discerned,” said Justice Omollo.
She observed that it was unclear why NWSC disconnected the power company’s water and sewer system, only to point to the Tribunal when asked why.
In this case, the county asserted that since KPLC was a government entity and it was a devolved unit of government, the issue ought to have been settled outside the court.
The court heard that the issue was an inter-governmental dispute which must first undergo Alternative Dispute Resolution (ADR) mechanisms, including negotiation, mediation, and arbitration, before resorting to judicial intervention.
It also claimed that Kenya Power should have first approached the water tribunal before seeking the court’s intervention.
At the same time, the county argued that the State agency had no power to institute a constitutional case. It claimed that clear regulations showed that the court had no powers to entertain the case.
In opposition, Kenya Power argued that the issue was not about how much each owed the other but a violation of the constitutional right to a clean environment.
Kenya Power said that despite the county owing it more than Sh1.68 billion in unpaid electricity bills, it was unjustifiable and illegal to dump waste and close down the sewer system in retaliation.
KPLC said it would not have filed a case before the tribunal as it lacked a quorum. According to the firm, the jobs portal showed that the judiciary had not hired new persons to hear and determine disputes.
By Kamau Muthoni
