Say you receive a bill for services subscribed to but the provider fails to list a certain fee or charge. Can the provider recover unlisted charges later?
That is one of many crucial questions before High Court Judge Enock Mwita by former Law Society of Kenya CEO Apollo Mboya, who has sued Kenya Power and Lighting Company for allegedly recovering unlisted diesel generator costs from consumers.
Mboya says recovery has been done through illegal inflation of bills.
Since November, more than 900,000 customers have been slapped with unusually high power bills, received fewer units for their normal monthly spend, been charged more for standard fees than electricity units and had unexplained fluctuation of tariffs.
When Mboya received three electricity bills of Sh9,863, Sh2,143 and Sh3,929 for his December
2017 consumption, he challenged them.
But what started as a challenge to billing has escalated into a full-blown High Court and social media war — with consumers on one side and the electricity distributor on the other.
This could result in a landmark ruling.
Mboya and the Electricity Consumers Society of Kenya (ECSK) have sued Kenya Power to stop it from recovering Sh10.1 billion for costs not reflected on 2017 bills.
While the case seeks to stop recovery of the pass-through costs, and refund customers from whom Sh2 billion was already recovered, it could mean service providers are blocked from recovering debts not included in initial bills.
Mboya wants a forensic audit of Kenya Power's billing system to uncover exactly how much consumers have been billed.
“The full extent of the operations, systems and over-billing meted on electricity consumers can only be ascertained by forensic audit of the operations, systems and financial status of Kenya Power. The Auditor General admits there is nothing that precludes the petitioner from petitioning him to conduct a forensic audit of the said Sh10.1 billion stated in Kenya Power's financial statements as stated in the petition,” Mboya argues.
But Kenya Power now denies the unusually high power bills were an attempt to recover the Sh10.1 billion. It says they resulted from implementing new billing software.
Company secretary Beatrice Meso holds that the Integrated Customer Management System (InCMS) was installed in September 2017. She says it replaced the Integrated Customer Service (ICS) system in use since 1998 but unable to handle large customer volumes.
The electricity distributor insists it informed the public of the new system through advertisements.
It maintains the erroneous bills resulted from software hitches, and that consumers visiting help desks countrywide had their issues resolved.
“It is not true that Kenya Power is backdating bills to recover Sh10.1 billion. All the tariffs and pass-through costs applied in customer bills are set by the Energy Regulatory Commission and Kenya Power has no authority to charge customers more than what the ERC prescribes,” Meso says.
But Mboya says some excessively high bills were sent to consumers before Kenya Power had installed the InCMS, hence, its defence is a smokescreen to distract the public from recovery of the Sh10.1 billion diesel generator costs.
The case, likely to result in a landmark ruling, has drawn in the ERC, which has been accused of aiding Kenya Power in the alleged over-billing scheme.
Mboya and ECSK argue gazette notices published by the regulator between 2017 and February 2018 have given Kenya Power leeway to irregularly adjust electricity bills upwards and pass on costs to hard-pressed consumers.
The gazette notices, Mboya argues, pushed up costs of fuel levies and other costs for previous months, opening the door for Kenya Power to increase electricity bills to recover old debts not reflected on bills sent to consumers.
One of gazette notices in question was published in February, 2018 and it increased a levy paid to the Water Resource and Management Authority (WRMA) for December 2017.
The two suing parties want Kenya Power MD Ken Tarus and ERC director general Pavel Oimeke jailed for contempt of court, arguing the electricity distributor has continued to push unlawful backdated costs on to consumers, despite a court order suspending this.
Prior to going to court, Mboya set up an email account and asked consumers on his social media pages to advise if they had been slapped with unusually high bills.
The lawyer says he received more than 600 emails from over-billed consumers.
He also filed a complaint with the Competition Authority of Kenya (CAK).
Kenya Power has denied
the over-billing issue was widespread, as Mboya says, arguing only a small fraction of its 6.4 million customers were affected.
The electricity distributor does not specify how many people were affected based on its records, but says in December its help desks helped resolve 870 cases.
Kenya Power in its 2017 financial statement said its reliance on diesel last year shot up, which meant the levy paid by consumers was to also go up.
It failed, however, to factor the levy in power bills, despite remitting money to power producers like KenGen. Kenya Power held that it would recover the uncharged levies through monthly invoices to consumers.
It has now accused Mboya of furnishing the court with only half the documentation for his December 2017 bill.
Samuel Ndirangu Mugo, its ICT general manager, says Mboya's bill included an estimation of consumption during weeks between November and December.
He argues Mboya's account had been marked for disconnection, but on arriving at the home, Kenya Power workers found most of the bill had been cleared.
They did not disconnect the home and Ndirangu now holds the lawyer was later billed for the period his account should have been disconnected.
Mboya rejects as false the power distributor's claim that the erroneous billing was not widespread.
He submits a report from the Energy Regulatory Authority stating that 900,000, or 14.1 per cent of all Kenya Power consumers, were affected.
But the court case is just half the battle ongoing since January, as it has spilled over to social media where it's gloves off.
After Mboya moved to court, Kenya Power has been a trending topic on Twitter.
Many users have demanded answers to the upsurge in billing or hurled insults.
Last week, users led by two well-known bloggers accused Mboya of being used by cartels within Kenya Power seeking to dethrone MD Tarus. They were overwhelmed by hundreds of Mboya supporters who said the lawyer's critics were paid by Kenya Power to fight him.