Juma Abdallah Vitu & 2 others v Kwale Water & Sewarage Company Limited & 2 others [2017] KEELC 2969 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Location of boreholes nos. 4 and 7
The court found that boreholes nos. 4 and 7 are on the Plaintiffs' parcel KWALE/WAA/1101
Because of the parties' disagreement on location, the burden was on the Plaintiffs, who discharged it through three witnesses including the valuer PW3. DW1 and DW2 admitted extraction of water from the boreholes on the Plaintiffs' land. DW3's contradictory evidence placing the boreholes on plot 515 was unsupported: the documents he introduced did not counter the Plaintiffs' evidence and DW1's admissions, and the 2nd Defendant, which owned other boreholes, failed to clarify the position.
Limitation - whether the claim for rent accruing from 1976 is statute barred
The claim is not time barred because the cause of action regenerates month to month as the boreholes remain in use
The boreholes are still in use, supplying residents of South Coast under a licence issued to the 1st Defendant. Since the claim is for monthly rent accruing from continued use of the boreholes on the Plaintiffs' plot, the wrong is continuous and the cause of action regenerates monthly. Unless the court determined that no such right existed, the time-bar argument fails.
Whether the dispute should have gone to the Water Appeals Board under the Water Act, 2002
No - the Water Act does not provide for resolution of this type of dispute, so the 2nd Defendant's reliance on the Godfrey Mwaki case was out of context
Section 40 of the Water Act, 2002 deals with variation of a permit at the request of a permit holder in relation to water use. Its preamble concerns management, conservation, use and control of water resources and regulation of rights to use water. It does not provide for resolution of disputes such as the Plaintiffs' contract claim, so the objection to jurisdiction fails.
Entitlement to compensation despite the lost 1976 agreement
The Plaintiffs were entitled to compensation for the portion of land in use, with judgment entered as prayed in prayer (e) for the monthly rent of Kshs 6,000 as pleaded
Although the written agreement was destroyed, the Plaintiffs supported their claim by stating the agreed payment terms and by calling an expert valuer who valued the land in its current use. The Defendants, if they thought the valuation exaggerated, could have presented their own report but did not. In the absence of contrary evidence proposing a different figure, judgment was entered for the pleaded monthly rent.
Legal principles established
#- Where boreholes continue to be used on private land, the cause of action for unpaid rent regenerates month to month and the claim is not time barred absent a determination that no right existed
- Where a party asserts that the disputed wells lie on a different plot, and that party owns other boreholes and holds the relevant records, the burden of clarifying the location rests on that party; uncontradicted documents relating to another plot do not discharge that burden
- Where a defendant does not adduce contrary valuation evidence, the court may act on the plaintiff's unchallenged valuation report
Court orders
#- 1.Judgment entered for the Plaintiffs as prayed in prayer (e) of the plaint, being Kshs. 2,778,000 plus amounts unpaid at the time of determining the suit (monthly rent of Kshs 6,000 as pleaded), payable by the Defendants jointly and severally
- 2.Prayers (b) and (d) of the plaint disallowed, the Plaintiffs having conceded
- 3.Costs of the suit awarded to the Plaintiffs
- Jurisdiction invoked
- Not expressly stated in the judgment; the suit is a land-related contract claim decided at first instance by the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juma Abdallah Vitu & 2 others v Kwale Water & Sewarage Company Limited & 2 others [2017] KEELC 2969 (KLR)", Case Analysis (2017). Civil Suit No 124 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2969/eng@2017-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.