The High Court has allowed Kenya Power to disconnect electricity in various county government institutions in its efforts to recover Sh732 million in unpaid bills.
In his judgement, Justice John Mativo noted that the county government had admitted to owing the debt.
The county government had also made a repayment proposal that was later agreed to by both parties.
“Nairobi County Government has not demonstrated it is under no obligation to pay the said debt nor has it offered any evidence to demonstrate that Kenya Power’s act of demanding the said sum is illegal,” Mr Mativo said.
Facilities where power supply could be disconnected are City Hall, City Hall Annex, Pumwani Hospital, Mama Lucy Hospital, county depots and street light pillars in the city centre.
In an affidavit, the county government alleged that Kenya Power wanted it to pay bills owed by the defunct Nairobi City Council (NCC).
The county government denied it took over NCC liabilities hence the demand for it to clear the said debt offended the Constitution, the Transition to Devolved Government Act and the Fair Administrative Action Act.
The county government argued that the liabilities were never transited to it, meaning it was under no obligation to pay the amount owed.
In a replying affidavit, Kenya Power’s chief legal officer, Jude Ochieng, said all consumers may pay their bills.
On August 8, 2011, Kenya Power wrote to the Energy principal secretary stating they had disconnected power supply to City Hall Annex because of non-payment bills amounting to about Sh5.1 million.
Mr Ochieng said sometime in 2012, NCC retaliated by uprooting the gates at Stima Plaza and even threatened to clamp Kenya Power vehicles. This resulted in hostilities between Kenya Power and NCC.
A joint committee was formed to resolve the dispute and it was decided that Kenya Power would waive about Sh2.1 million and the rest would be paid in monthly instalments of Sh30 million.
Ochieng said the city council defaulted and as a result, the bills escalated to Sh7.2 million.
The power firm’s managing director at the time sought former Nairobi governor Evans Kidero’s intervention when in July 2013, it was agreed that the county government would pay Sh1.5 million per day to offset the monthly bills.
The county would pay the balance after receiving funding from the national government on or before October 15, 2013. It would then pay Sh5 million per week for two months to reduce the accumulated debt.
In January 2015, the county government entered into an agreement with Kenya Power to pay Sh3 million per day for one year and a one-off payment of Sh20 million.
Ochieng said the county honoured the agreement between January and April 2015 then started defaulting.
They then requested a review of the repayment plan – from Sh3 million to Sh1.5 million daily.
The government argued that the threat to disconnect electricity risked violating millions of city residents’ right to health and fair administrative action, and was also a violation of the Constitution.
The judge said since the county government took over the said facilities, it was obligated to pay the electricity bills.
“It assumed the benefit. It agreed to pay the debt and even made payment for a considerable period. It cannot turn around and deny the same debt it had acknowledged,” said Mativo.