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ELCDismissedE.L.C. Judicial Review Case No. 31 of 2018· [2019] KEELC 1886 (KLR)

Susan Nyawira Mathenge v Water Resources Authority (Previously Water & another [2019] KEELC 1886 (KLR)

Environment and Land Court
11 July 2019
3,086 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a borehole owner's attempt to quash WARMA's stop order, confirming the regulator was lawful and she should have objected within 14 days.

What this practically means

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Executive summary

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The applicant sought an order of certiorari to quash a stop order issued by the Water Resources Authority (formerly WARMA) on 13/2/2018 directing her to stop selling water from her borehole, and an order of prohibition restraining the respondent from disconnecting the borehole or forcibly closing her water business. She earned approximately Kshs. 450,000 monthly from the business. She argued that WARMA was defunct upon commencement of the Water Act, 2016 and therefore had no mandate to issue the order, that the order breached Article 47 of the Constitution, Section 48 of the Water Act and the Fair Administrative Actions Act for want of notice and hearing, and that she had been misled into applying for the wrong permit. The respondent countered that the varied permit of 11/5/2017 authorised abstraction for domestic use and commercial irrigation only, not sale of water to the public, which required a licence from the Water Services Regulatory Board; that the stop order was issued on prescribed Form WRMA 016 under Rule 8(1) of the 2007 Rules, which remain in force under Section 24 of the Interpretation and General Provisions Act; and that the Water Tribunal had jurisdiction. The court held that the applicant could not rely on a permit issued by WARMA on 11/5/2017 after the 2016 Act commenced and simultaneously claim WARMA was non-existent; that the stop order was a lawful compliance order carrying a 14-day objection right under Rule 8(5) which the applicant failed to pursue; and that the permit did not authorise sale of water to the public. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether WARMA was a defunct body without mandate to issue the stop order

Holding

WARMA was not defunct for the purpose of issuing the stop order; the applicant cannot rely on permits issued by WARMA after the 2016 Act commenced and simultaneously claim it did not exist

Reasoning

The Water Act 2016 commenced on 4/4/2017 and Legal Notice 60 relied on by the applicant bears that date. The applicant applied for variation of her permit on 13/4/2017 on a WARMA form and was issued the permit on 11/5/2017 on WARMA's letterhead. To hold that WARMA was non-existent when it issued the stop order would invalidate the applicant's own permit.

p. 4
02

Whether the stop order was issued in breach of natural justice and fair administrative action

Holding

The stop order was not a cancellation of the permit but a compliance order under Rule 8(1) on prescribed Form WRMA 016, which carried a built-in right of objection within 14 days under Rule 8(5) that the applicant failed to exercise

Reasoning

The court examined the stop order and found it was Form WRMA 016 prescribed under Rule 8(1) of the 2007 Rules, which remain in force under Section 24 of the Interpretation and General Provisions Act. Rule 8(5) allowed objection within 14 days. The respondent maintained that the permit was not cancelled. The applicant's failure to pursue that avenue was fatal to her claim of procedural unfairness.

p. 4
03

Whether the applicant was entitled to sell water commercially under her permit

Holding

The varied permit allowed abstraction for domestic use and commercial irrigation only, not for sale of water to the public; the applicant could not rely on the conduct of other permit holders

Reasoning

The permit issued on 11/5/2017 authorised abstraction of 90m3 daily, being 15m3 for domestic use and 75m3 for commercial irrigation. Selling water to the public required licensing by the Water Services Regulatory Board under Section 75(10) and Section 85 of the Water Act. The applicant was not so licensed and could not rely on other estate businesses operating similarly.

p. 3

Legal principles established

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  • Subsidiary legislation made under a repealed statute remains in force after the repeal unless repealed or replaced, by virtue of Section 24 of the Interpretation and General Provisions Act
  • A party cannot approbate and reprobate - having obtained a permit on a WARMA form after the 2016 Act commenced, the applicant could not claim WARMA was defunct when it issued the stop order
  • Where a statutory procedure exists for objecting to an administrative order, that avenue should be pursued before resorting to judicial review

Court orders

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  1. 1.The orders of certiorari and prohibition sought in the application dated 4/6/2018 are declined
  2. 2.Each party will bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 23, 47, 159(2)(d)
  • Water Act, 2016Sections 11, 12(c), (d), (e), 24, 48, 48(2), 49, 55, 75(10), 85, 121, 156
  • Law Reform Act, Cap 26Sections 8 & 9
  • Civil Procedure Rules, 2010Order 53
  • Fair Administrative Actions ActSection 4, Section 4(3)
  • Water Resources Management Rules, 2007Rule 8(1), 8(5), Form WRMA 016
  • Interpretation and General Provisions ActSection 24
  • Legal Notice No. 60

Cases cited (2)

  • Geothermal Development Company Limited v the Attorney General and 3 other
    [2013] eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
Jurisdiction invoked
Sections 8 & 9 of the Law Reform Act, Cap 26 and Order 53 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Susan Nyawira Mathenge v Water Resources Authority (Previously Water & another [2019] KEELC 1886 (KLR)", Case Analysis (2019). E.L.C. Judicial Review Case No. 31 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1886/eng@2019-07-11

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