Water Resources Management Authority v Kensalt Limited [2014] KEELC 144 (KLR)
The bottom line
#Kenya's High Court struck out a Kshs.270 million sea water claim, ruling the water regulator had no power to charge for sea water use.
What this practically means
#Executive summary
#Key legal issues
#Whether sea water is capable of ownership (res nullius question)
Sea water in the territorial sea and the exclusive economic zone is public land under Article 62(1)(j) and 'land' under Article 260 of the Constitution, vested in the people of Kenya collectively; it is not res nullius
Article 260 defines land to include marine waters in the territorial sea and the exclusive economic zone, and Article 62(1)(j) classifies them as public land vested in the national government in trust for the people. Article 61(1) makes all land belong to the people of Kenya. The KPA case predating EMCA 1999, the 2010 Constitution and UNCLOS ratification no longer reflects the current legal position. Sovereignty cannot be separated from ownership, and international law exceptions like innocent passage do not negate ownership.
Whether the National Land Commission has exclusive jurisdiction to regulate and manage sea water
Yes - only the National Land Commission can administer, manage and license the use of the territorial sea, the exclusive economic zone and the sea bed as public land under Article 62(3), Article 67(2)(a) and section 5(1)(a) of the National Land Commission Act, 2012
Article 62(3) vests the territorial sea in the national government in trust for the people but assigns administration to the National Land Commission. Article 67(2)(a) and section 5(1)(a) of the NLC Act 2012 confirm the Commission's mandate to manage public land. Article 62(4) requires public land to be used only as specified in an Act of Parliament, and the Land Act, 2012 empowers the Commission to licence use of unalienated public land. Bodies created by other statutes to perform these functions risk being declared unconstitutional.
Whether sea water is a 'water resource' as defined in section 2 of the Water Act such that the Plaintiff can levy charges for its use
No - by the ejusdem generis rule, the general words 'other body of flowing or standing water' are confined to internal waters; sea water is not included, and Rule 4(2) of the Rules confirms the Rules only reach coastal channels leading to territorial waters
The definition of 'water resource' lists particular water bodies (lake, pond, swamp, marsh, stream, watercourse, estuary, aquifer, artesian basin) all existing on the mainland as internal waters. Under the ejusdem generis rule as stated by Cockburn CJ in R v Cleworth and Lord Campbell in R v Edmundson, the general words take the colour of the specific ones. The Constitution itself clusters rivers, lakes and other water bodies separately from the territorial sea. Rule 4(2) limits the Rules to coastal channels leading to territorial waters, and the draft Water Bill 2014 shows the lacuna was intended to be cured prospectively.
Whether the Plaintiff's plaint discloses a reasonable cause of action warranting striking out under Order 2 Rule 15(1)(a) and (d)
Yes - the suit is wholly based on the erroneous presumption that the Plaintiff can levy charges for the use of sea water under the Water Act and the Rules, so it discloses no reasonable cause of action and is struck out with costs
The entire claim of Kshs.270,295,759.90 for water use charges is premised on the Water Act and the Water Resources Management Rules. Having found that the Plaintiff lacks locus standi to levy charges for the use of sea water because sea water is not a 'water resource' under the Act, the foundation of the claim fails. Taxing statutes must be construed strictly and nothing can be read in, per Brandy Syndicate v IRC and IRC v Wolfson. The suit therefore does not disclose a reasonable cause of action against the Defendant.
Legal principles established
#- Marine waters in the territorial sea and the exclusive economic zone are public land vested in the people of Kenya and are not res nullius; they are capable of ownership notwithstanding that they move
- The National Land Commission is the only body constitutionally mandated to administer and manage public land including the territorial sea, the exclusive economic zone and the sea bed
- Under the ejusdem generis rule, the general words 'other body of flowing or standing water' in the definition of 'water resource' under the Water Act cannot be construed to include sea water
- Charges imposed on a subject must be imposed by clear and unambiguous language; nothing is to be read into a taxing statute
Court orders
#- 1.The Plaintiff's suit is struck out with costs to the Defendant
- Jurisdiction invoked
- Article 162(2) of the Constitution (Environment and Land Court) - original jurisdiction over the plaint filed 21st November 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Water Resources Management Authority v Kensalt Limited [2014] KEELC 144 (KLR)", Case Analysis (2014). Malindi HCCC No. 18 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/144/eng@2014-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.