The energy sector regulator, Epra, has no role in determining compensation to victims of power surges whose claims arising from damaged electrical equipment will be reviewed by the courts.
This follows a landmark ruling that held such claims amount to negligence and fall outside the jurisdiction of the Energy and Petroleum Regulatory Authority (Epra).
The Milimani Commercial Court ruled that claims arising from alleged negligent electricity supply are tortious claims or compensation claims that should be heard by civil courts rather than by Epra or the Energy and Petroleum Tribunal.
The decision could heighten pressure on Kenya Power to exercise greater care in the supply of electricity.
The case was filed by Placid View Properties Ltd, which owns and operates the four-star Ole Sereni Hotel, after a voltage fluctuation allegedly damaged the hotel’s electrical equipment.
The hotel sued Kenya Power on March 3, 2025, seeking Sh4.2 million in compensation, saying unstable electricity damaged its voltage stabiliser and submersible pump.
Kenya Power, however, argued that the suit had been filed in the wrong forum, insisting disputes relating to electricity supply, outages and power surges fall within the exclusive mandate of Epra and the dispute resolution framework established under the Energy Act.
Principal Magistrate Linda Akosa Mumassabba rejected that argument, holding that the dispute was an ordinary civil claim founded on negligence rather than a regulatory dispute under the Energy Act.
“The Defendant has further failed to demonstrate that there exists a statutory dispute resolution mechanism under the Energy Act capable of adjudicating the Plaintiff’s negligence claim and granting the reliefs sought in the Plaintiff,” the court ruled.
The court added that the doctrine of exhaustion—which generally requires litigants to first pursue remedies before specialised tribunals before moving to court—did not apply because Kenya Power had failed to show that Epra or the Energy and Petroleum Tribunal had legal authority to hear negligence claims, assess damages and award compensation for destroyed property.
The doctrine of exhaustion requires parties to first exhaust statutory dispute-resolution mechanisms established by Parliament before approaching the courts.
However, courts have consistently held that the doctrine only applies where the alternative forum has jurisdiction and can grant the relief sought.
A tortious claim is a civil action brought by a person seeking compensation after suffering loss or injury as a result of another party’s wrongful conduct.
In negligence claims, a claimant must prove that the defendant owed a duty of care, breached that duty, and that the breach directly caused the damage complained of.
The magistrate noted that these are classic elements of the tort of negligence and have historically been determined by ordinary civil courts.
The ruling means the Ole Sereni suit will now proceed to a full hearing on its merits.
The court declared that it has jurisdiction to hear the matter, directed the parties to appear on August 26, 2026, for pre-trial directions, awarded the hotel costs of the preliminary objection and gave KPLC 30 days to appeal.
