Kenya Power will pay Nairobi County Sh605 million in accumulated way-leave charges.
Justice John Mativo dismissed a petition by the power company that wanted an injunction issued so that the county does not compel it to pay up. The fees accrued from way-leave and pole charges.
In the ruling, Justice Mativo upheld Section 148 of the Constitution on local government, saying the Nairobi County predecessor, City Council, was mandated to charge way-leave fees as per the law.
"The question that follows is whether or not the legal notice in question violates Section 148 as alleged or any other provision of the of the law in the Constitution,” read the ruling.
Kenya Power had sought to have the court declare it not liable to pay any charges on account of poles and way leaves, and issue an injunction restraining the county from demanding or seeking any charges.
It also wanted damages for its rights being violated in the Constitution, which demands it provides power to 4.4 million people and cables that are used by telcos.
Kenya Power argued in the said legal notice, City Council of Nairobi purported to exercise its powers as per Section 148 of Local Governments Act to revise house rents, fees and charges.
Kenya Power argued that for it to make such payments, it would require a substantial revision of the tariffs it charges its consumers.
This prompted the county to sue the company, seeking to recover Sh164.4 million.
Nairobi County, through an affidavit by S.K. Mburu, said it had the legal mandate of controlling streets, and road reserves situated within its jurisdiction and to maintain them for the benefit of the public.
Engineer Mburu argued the change in fees was passed by the then Minister for Local Governments to take effect from January 2002 and the notice was duly gazetted.
He added that the petitioner (Kenya Power and Lighting Company) was liable to pay to the first respondent (Nairobi County) the sum of Sh641 million: “…and it has always made such payments in the past and that previous discussions did not touch on the legality or otherwise of the said legal notice.”
He said a joint committee comprising the petitioner (Kenya Power and Lighting Company) and the first respondent’s predecessor (City Council) concluded that the petitioner (KPLC) owed the first respondent’s predecessor (City Council) a sum of Sh426 million on account of way leave charges.
He said the first respondent’s predecessor (City Council) owed the petitioner (KPLC) Sh280 million on account of electricity bills. He added that way-leave charges are levied on other service providers as well who use way leave space on road reserves.
Nairobi County and the State-owned power company have been tussling over debts owed to each other for years.
In October last year, the two clashed after the county demanded it should be paid its dues failure to which it would clamp down the power distributor’s buildings.
And Kenya Power demanded its electricity dues be offset or else it would disconnect power at the City Hall Annex, Pumwani Hospital, Mama Lucy Kibaki Hospital and all schools managed by the county.
In total, the power company demanded Sh732 million from the county.
Kenya Power argued it owed the city nothing as poles and way leave fees ought to be borne exclusively by the national government.