A judge rules that the anti-graft agency cannot be dragged into a contractual debt dispute, dealing a blow to the utility firm's defense strategy.

The High Court has delivered a significant procedural blow to Kenya Power in its ongoing Sh476 million debt dispute with advertising giant Scanad Kenya Limited. Justice Bahati Mwamuye rejected the utility firm's application to join the Ethics and Anti-Corruption Commission (EACC) as an interested party, ruling that the anti-graft body has no place in a purely commercial conflict between two private entities.

The Missing Documents Defense

The dispute centers on unpaid invoices amounting to Sh476 million for media and advertising services rendered by Scanad, a subsidiary of the global WPP Scangroup. Kenya Power has not denied the debt but argues it is incapacitated from filing a proper defense because the original payment documents—including Local Purchase Orders (LPOs), delivery notes, and invoices—were seized by EACC investigators in 2019 and 2020 during a probe into procurement irregularities.

Kenya Power sought to rope in the EACC to compel the production of these documents, claiming their absence prejudiced its case. "The Commission holds the key to the verification of these debts," Kenya Power’s legal team argued. "Without them, we cannot authenticate the claims."

The Court's Ruling

However, the court found this argument unpersuasive for the purpose of joining the EACC to the suit. The judge noted that the EACC’s mandate is distinct from commercial arbitration and that dragging the commission into the suit would only serve to delay justice for the claimant. "The Commission has no direct stake in the commercial dispute and should not be drawn into a purely contractual issue," the ruling read.

• Legal Avenues Available: The judge advised that Kenya Power could utilize other legal mechanisms, such as witness summons or specific discovery orders, to obtain copies of the documents without making the EACC a party to the suit.
• Scanad's Position: Scanad strongly opposed the application, characterizing it as a delaying tactic designed to frustrate the recovery of legitimate dues that have been outstanding for over five years.

Implications for Parastatals

This ruling sets a precedent for state corporations that often use ongoing EACC investigations as a shield against settling commercial debts. By separating the criminal investigative mandate of the EACC from civil contractual obligations, the court has signaled that internal compliance failures or external investigations cannot be used to indefinitely stall payments to suppliers. For Kenya Power, the clock is now ticking to find the documents—and the money—by other means.