Lawyer Apollo Mboya is a seasoned lawyer who at one point was the Lawyers Society of Kenya chief executive. His biggest shot to prominence outside the legal fraternity when he instituted a class action suit against Kenya Power over erroneous bills. People held high hopes that this time, the exploitation by KPLC was eventually going to come to an end.
Mboya and a lobby group the Electricity Consumers Society of Kenya moved to court after Kenya Power issued consumers with with inflated backdated electricity bills to recover Ksh 10.1 billion contained in their Annual Report and Financial Statements for the year ending June 30, 2017.
The company claimed the money was outstanding since it did not want to raise power charges during an election year.
He asked the court to declare that the distributor made false or misleading representations of electricity tariffs and bills, thereby infringing on consumers’ rights.
Mboya also sought to have the monopoly status enjoyed by Kenya Power declared unconstitutional.
In October 2018, things took a sharp turn, Mboya and Kenya Power reached an out-of-court deal in the electricity billing case.
Kenya Power reportedly agreed to stick to tariffs approved by the Energy Regulatory Commission and set up billing query centres countrywide.
But that only seemed as lip service, Kenya Power still maintains the monopoly and Kenyans still paying higher.
Following the out of court settlement, furious Kenyans came forward accusing lawyer Apollo Mboya of selling them short by entering into a consent order with Kenya Power and Lighting Company Ltd (KPLC).
They said that they felt betrayed by the decision by the lawyer to settle stating that the consent did not address the original prayers. They felt betrayed as the Kenyan people still bore the burden on account of over billing by KPLC.
The applicants swore affidavits indicating that Apollo Mboya filed the suit as a representative under article 22 (2)(b) of the constitution on behalf of the customers as a class action.
One customer Jerotich Seii said that she contributed to the filing of the petition. Seii indicated that she was also administering the email address [email protected]. She said that the lawyer used the contents of the emails to file his submissions.
Betrayal in the lights. Why would Apollo Mboya betray millions of Kenyans who entrusted him. Worse still betray his colleague Jerotich Seii with whom they've both fought against the rise in tariffs by opting for an out of the court segment. Who is Apollo to decide on such?
— Mukami (@Mukami_Mungai) October 22, 2018
Another applicant James Gitau stated that he provided expertise information and guidance as an engineer having worked in the energy sector to the lawyer as he filed his submissions.
Eva Mutua on the other hand said that she had been collaborating with Apollo Mboya and the first applicant in coordinating and gathering information that the lawyer used while filing his submissions.
I'll never forget Apollo Mboya's betrayal. He collected KPLC payment data from Kenyans only to turn around and sell it to Kenya Power.
— Michael Mburu (@MichaelMburu_) April 13, 2019
Now Kenya Power has a lot of billing data that it can use to manipulate records & probably get away with the illegal bills. WTF!
All the applicants stated that it was heart shattering and breach of trust that the lawyer chose to settle by entering into a consent order.
“In a heart shattering moment and in flagrant breach of trust bestowed upon himby the people of Kenya,the 1st Petitioner chose to settle this Petition by entering into a consent order dated 23rd October 2018,” the affidavits read in part.
The applicants filed this suit under a certificate of urgency stating that if the consent is executed it may be detrimental to the interests and legitimate expectations of the Kenyan people.
There were allegations then that Mboya was bribed with Sh100M to let go off the suit which still haunts him as it returned to court. Mboya who was vocal on Twitter then, closed his page and had never returned again.
So now Mboya is fighting the case hard with the same people he had filed the suit with, in unsurprising turn of events.
WaKenya: we were in court this morning for the Petition 59 mention before Justice Makau. When our lawyer sought leave to cross examine the respondents, Apollo Mboya did his best to try & side step this. Referring to us as "those people". Si we refresh his memory?#SwitchOffKPLC pic.twitter.com/VZu6DMQ69A
— #HumanityKe (@JerotichSeii) March 3, 2020
However, Mboya’s deal with KPLC was given an approval by Nelson Havi who’s now the LSK chairman.
I have reviewed the out of court settlement between Apollo Mboya and KPLC. It is good for consumers and the supplier. Those who do not understand the perils of litigation and uncertainties of judicial outcomes can continue noising in ignorance.
— Nelson Havi (@NelsonHavi) October 22, 2018
In September 2017, Mboya filed a petition seeking Supreme Court judge Njoki Ndung’u removal for “gross misconduct and misbehaviour.”
In the petition to the Judicial Service Commission (JSC), based his arguments on the full judgment Justice Ndung’u delivered on September 20, where she listed reasons for dissenting with the majority decision of four judges.
The advocate believed her 440-page judgement revealed that she exhibited “lack of courtesy and civility towards the law and other judges”. He listed five paragraphs from her verdict to buttress that statement.
The lawyer also singled out a statement in Justice Ndung’u’s decision that sought to direct lower courts to disobey the majority decision.
“By dint of Article 163(7) of the Constitution of Kenya, the decision of the Supreme Court of Kenya is binding on the lower courts but Justice Njoki Ndung’u in paragraph 697 A of her dissent judgment disregarded the provision by directing the lower courts to disregard the decision of the Supreme Court,” he states.
Mr Mboya said Justice Ndun’gu lacked judicial temperament, professional competence and that she does not possess integrity, propriety, has no regard for equality and is incompetent.
He also questioned her “substantive and procedural knowledge of the law, her “ability to maintain composure under stress” and her “ability to control anger and maintain calmness and order”.
“Hon Justice Njoki Ndung’u dishonestly ignored the forms tendered by the Independent Electoral and Boundaries Commission for scrutiny and based her dissenting judgment on forms and material that were not tendered for scrutiny.
“It was not humanly possible that Justice Njoki Ndung’u examined all the disputed forms from the date of hearing of August 28 to the date of summary judgement on September 1,” added Mr Mboya.
As a matter of fact, the advocate said, in Justice Ndungu’s summary judgement of September 1 there was no mention of scrutinising the forms as she said in her full judgement.
His request to JSC was to view Justice Ndungu’s recent actions as an addition to what the commission found in a letter it wrote to her on May 9, 2016.
Having so done, he wanted JSC to “initiate the necessary procedures for the removal of Justice Ndung’u for breach of the oath of office and for gross misconduct and/or misbehaviour incompatible with the status of a judge of a Supreme Court of Kenya”.
In her detailed ruling on September 20, Justice Ndung’u disagreed with her colleagues’ decision to nullify President Uhuru Kenyatta’s win.
She tore into key parts of the evidence, which informed the ruling that annulled the August 8presidential election and faulted her colleagues for not using the certified forms filed in court by the electoral commission to verify the claims made by Nasa presidential flagbearer Raila Odinga.
May 8,2019, there was a last minute push by the JSC to save Justice Njoki, the dilemma was whether to put her before a tribunal or not.
The Judicial Service Commission spared Supreme Court judge Njoki Ndungu the embarrassment of having to face a tribunal.
In a statement read by Chief Justice David Maraga on 9th May, the JSC said a complaint against Justice Ndungu had been dropped by her accuser, lawyer Apollo Mboya.
Njoki was also embroiled in a Sh390M bribery scandal.
Even though Njoki was saved from facing a tribunal the legality of the probe against her was challenged and the high court on Monday ruled it was unlawful. The court also threw out the Mboya’s petition.
Blogger Robert Alai sensationally mentioned that Mboya was bribed with Sh70M to withdraw the case.
No throwing out here.
— Robert Alai (@RobertAlai) May 14, 2020
Appollo Mboya was paid Ksh 70 million for this petition and the KPLC one.
He was bribed. https://t.co/J22x6aJSty
Mboya has been a serial petitioner. In December 2016, former LSK CEO Apollo Mboya filed a petition seeking the removal of CJ Maraga. Who knows what happened to that? During 2012 vetting of judges, Mboya was one of the witnesses against Maraga on bribery claims.
•April 2017, Apollo Mboya wants the government barred from advertising its four-year achievements in the recently launched delivery portal. We’re yet to see the end of the suit.
•December 2016, Apollo Mboya writes to DPP to institute contempt proceedings against Jubilee MP Aden Duale.
•October 2016, Mboya had called for the prosecution of political analyst Mutahi Ngunyi over alleged incitement on social media.
In a letter to the National Cohesion and Reconciliation Commission (NCIC), Mboya said Ngunyi’s posts on social media were intended on inciting the public against a certain community.
But the suit was squared with a goat from Mutahi
Met Apollo Mboya with Jennifer Shamalla. I can confirm he is an ELEGANT Mind. After Goat ceremony, we discussed intellectual gobbledegooks.
— Mutahi Ngunyi (@MutahiNgunyi) September 9, 2015
The then Nairobi Governor Evans Kidero called Mboya ‘stupid boy’ for accepting a goat as apology from Mutahi. Apollo threatened to sue Kidero through a demand letter that’s in September 2015. We’re yet to see the end of the case.
In 2018, Apollo Mboya had sought to force the JSC to forward the names of the three senior judges-justices Mohamed Ibrahim, Njoki Ndung’u and Jackton Ojwang’; to President Uhuru Kenyatta to constitute a tribunal for their removal.
Former Chief Justice Willy Mutunga was also entangled in the matter.
At the centre of the dispute was the retirement age of former Deputy Chief Justice Kalpana Rawal and Justice Phillip Tunoi. Mr Mboya wanted the three justices removed from office for allegedly downing their tools in protest after the JSC retired justices Rawal and Tunoi on attainment of 70 years of age.
High Court in November 2018 was told the parties had informally met and were considering having the case touching on justices Mohamed Ibrahim, Njoki Ndung’u and Jackton Ojwang’ marked as settled. As there was an out of court settlement bargain with Mboya.
“I am aware there is some move towards an amicable settlement. There has been some discussion although not formalised. There is a likelihood that this matter can be settled. We can take a mention date probably in December in the goodwill of the Christmas season to have the matter settled,” Justice Ojwang’s lawyer Daniel Musyoka told the court.
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