Fresh bid to revive Kenya Power class action lawsuit fails

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The new offer to revive the class action lawsuit against Kenya Power fails

Monday, January 25, 2021

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KPLC employees repair a power line. FILE PHOTO | NMG

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BY SAM KIPLAGAT
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Summary

  • Judge James Makau dismissed Gitson Energy Ltd’s motion, stating the company was not a party to the lawsuit, which was resolved with consent in October 2018.
  • The judge also dismissed a second motion attempting to interrogate attorney 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 or the consent given by the parties in 2018, noting that the consent had a contractual effect and only at the request of parties that signed it and not any third party could be canceled.

The High Court has dismissed a new attempt to revive a class action lawsuit against Kenya Power for alleged electricity bill inflation that was settled two years ago.

Judge James Makau dismissed Gitson Energy Ltd’s motion, stating the company was not a party to the lawsuit, which was resolved with consent in October 2018.

The judge also dismissed a second motion attempting to interrogate attorney 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 or the consent given by the parties in 2018, noting that the consent had a contractual effect and only at the request of parties that signed it and not any third party could be canceled.

“It follows that mere and cumbersome allegations of fraud, the collusion of a stranger with the procedure, cannot constitute a valid reason for the withdrawal of consent,” said the judge, while dismissing the case.

The company and its directors James Gitau, Jerotich Seii, Robert Alai, and Alvis Abenga said the consent contained fraud and the court should review them and allow them to pursue the case.

However, the judge said the company had not established any new matter that was not known at the time of the appointment.

The Treasury Department, along with Kenya Power, Kenya Electricity Transmission Company and the Department of Energy, spoke out against the case, claiming it was an attempt to reopen a case that had already been settled.

A similar case was dismissed last year by Judge Weldon Korir, who claimed that fraud cases were hearsay.

In the first cases, Mr Mboya and the Electricity Consumers Society of Kenya (ECSK) wanted to prevent KP from getting back Sh 10.1 billion for costs not included in the 2017 bills.

He went to court after around 900,000 customers were hit with abnormally high utility bills or received fewer units for their normal monthly expenses.

The lawsuit also aimed to prevent Kenya Power from reimbursing the costs already reimbursed and a reimbursement of Sh2 billion.

However, Kenya Power denied the claims, saying it was implementing new billing software. However, since the case was still pending, Mr. Mboya signed the utility company’s consent to resolve the case.

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