Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment· [2017] KEELC 976 (KLR)

Isaac Kipyego Cherop v State Ministry of Water & 142 others [2017] KEELC 976 (KLR)

Environment and Land Court
2 November 2017
AOA. OMBWAYO
1,912 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The court confirmed it can hear water rights cases, but dismissed the petition because the community didn't precisely prove its right to water was violated.

What this practically means

#

Executive summary

#
The petitioner, a resident of Eldama Ravine, petitioned the Environment and Land Court at Eldoret against the State Ministry of Water, the Rift Valley Water Services Board and the Attorney General over the Chemususu Dam water supply distribution project. He complained that areas including Maji Mazuri, Mumberes, Torongo, Raddad, Majimoto, Mugaria and Kisanana had been excluded from the distribution network without information or reasons, alleging discrimination contrary to Article 27, violation of the right to clean and safe water under Article 43(d), denial of the right to information, and frustration of legitimate expectations. The respondents opposed the petition, with the 2nd respondent contesting the court's jurisdiction and filing a replying affidavit, and the 1st and 3rd respondents filing grounds of opposition. The court first upheld its own jurisdiction, reasoning that the right to clean water is intertwined with the right to a clean and healthy environment and that Article 260 defines land to include bodies of water on or under the surface, bringing the dispute within Article 162(2)(b) and Section 13 of the Environment and Land Court Act. On the merits, the court applied the Anarita Karimi Njeru threshold as amplified in Mumo Matemu and found the petition wanting: no request for information had been made, and no economic deprivation was demonstrated. The court held that the right to clean and safe water is subject to progressive realization under Articles 20(5) and 21(2), the state cannot realize it for every Kenyan in one investment, and the right is aspirational. The petition was dismissed with each party bearing its own costs.

Key legal issues

#
01

Jurisdiction of the Environment and Land Court over a petition on the right to water

Holding

The court has jurisdiction; the right to clean water is intertwined with the right to a clean and healthy environment, and Article 260 defines land to include bodies of water on or under the surface

Reasoning

The 2nd respondent argued the dispute concerned neither land title nor the environment. The court held that the right to clean water is intertwined with the right to a clean and healthy environment, and that Article 260's definition of land includes water on or under the land, bringing water-use disputes within Article 162 and Section 13 of the Environment and Land Court Act.

p. 3
02

Whether the petition met the Anarita Karimi Njeru threshold of precision

Holding

The petition failed to meet the threshold; the petitioners did not demonstrate the alleged infringement with precision nor how they were economically deprived

Reasoning

Applying Anarita Karimi Njeru as amplified in Mumo Matemu, the court required reasonable precision in framing constitutional petitions. The petitioners neither demonstrated denial of the right to information (no request having been made) nor established economic deprivation from exclusion from the water distribution network.

p. 3
03

Whether the right to clean and safe water under Article 43(d) had been violated

Holding

No violation established; the right is aspirational and subject to progressive realization within available state resources, guided by Articles 20(5) and 21(2)

Reasoning

The court held that Article 43 rights can only be realized progressively and that the state cannot realize them for every Kenyan in one investment. Under Article 20(5) the state bears the burden of showing resources are unavailable, and courts may not interfere with resource allocation decisions solely because they would have reached a different conclusion. The petitioners proved no violation.

p. 4

Legal principles established

#
  • The Environment and Land Court has jurisdiction to hear and determine disputes touching on the right to clean and safe water under Article 43(d), because land under Article 260 includes bodies of water on or under the surface and the right to water is intertwined with the right to a clean and healthy environment
  • Rights under Article 43 of the Constitution, including the right to clean and safe water in adequate quantities, are subject to progressive realization within the state's available resources
  • A constitutional petitioner must plead with reasonable precision the provisions infringed and the manner of infringement, and bears a duty to request information before claiming denial of the right to information

Court orders

#
  1. 1.The petition is dismissed
  2. 2.Each party to bear own costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 43
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 260
  • Constitution of Kenya, 2010Article 20(5)
  • Constitution of Kenya, 2010Article 21(2)
  • Constitution of Kenya, 2010Article 159
  • Environment and Land Court ActSection 13
  • Civil Procedure ActSections 1A and 1B
  • Appellate Jurisdiction ActSections 3A and 3B

Cases cited (3)

  • Anarita Karimi Njeru Vs Republic
    (1979) 1EKR
  • Mumo Matemu Vs Trusted Society for Human Rights Alliance & 3 Others
    (2013) eKLR
  • Thorp V Holsworth
    (1876) 3 Ch. D. 637
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Isaac Kipyego Cherop v State Ministry of Water & 142 others [2017] KEELC 976 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/976/eng@2017-11-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.