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ELCDismissedNot stated in the judgment (plaint filed 3/7/2018)· [2019] KEELC 3921 (KLR)

Karolyne Mwatha Mburu & 2 others v Athi Water Services Board and Water Resources Authority [2019] KEELC 3921 (KLR)

Environment and Land Court
13 March 2019
BEB M Eboso
3,198 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiffs, officials of Loresho South Residents Association, sued on 3/7/2018 seeking a permanent injunction against the 1st defendant (Nairobi City Water & Sewerage Company) and the 2nd defendant (Water Resources Authority) to stop construction of a water transmission pipeline and demarcation of the riparian reserve along Kibagare River through their estate, plus general damages. Together with the plaint they moved the court by notice of motion dated 3/7/2018 for interlocutory injunctions and police enforcement assistance. The defendants opposed: the 1st defendant said the pipeline is a Government and donor-funded Vision 2030 project designed along road reserves, way-leaves and riparian land, with compensation available for affected private owners, and that pipelines are overriding interests under Section 28 of the Land Registration Act; the 2nd defendant said its role was limited to demarcating the riparian reserve under the Water Act 2016 and the Water Resources Management Rules 2017. In a ruling delivered on 13/3/2019, B M Eboso J framed a single issue: whether the plaintiffs had satisfied the Giella v Cassman Brown criteria. He held the association had no evidence of ownership of the threatened properties or written authorisation from registered proprietors, so no prima facie case was established; that rivers are public land and streams are vested in the National Government under the Water Act; that the leases contain a special condition permitting entry to lay water mains; and that the balance of convenience favoured the public project. The notice of motion was dismissed with costs to the defendants.

Key legal issues

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01

Whether the plaintiffs established a prima facie case with a probability of success

Holding

No prima facie case was established; the association showed no registered ownership or authorisation, and the constitutional, statutory and title frameworks favour the defendants

Reasoning

The court applied Mrao's definition of a prima facie case. No evidence showed the association owned any threatened property or had written authorisation from specific registered proprietors. Further, rivers are public land, streams are vested in the National Government, water supply pipelines are overriding interests under Section 28 of the Land Registration Act, and the leases contain a special condition permitting entry to lay water mains and service pipes.

p. 3
02

Whether the balance of convenience favoured granting the injunction

Holding

The balance of convenience favoured allowing the public water project to proceed

Reasoning

The court noted the project is a Vision 2030 project intended to serve many residents of Nairobi and its environs, and that at interlocutory stage no definitive findings are made on contested issues. Since the first two Giella limbs failed and the project was in the public interest, the balance of convenience tilted in allowing the government project to proceed as planned rather than halting it by injunction.

p. 4

Legal principles established

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  • A residents' association without written authorisation from the affected registered proprietors cannot maintain a suit concerning the proprietors' property rights
  • Rivers are public land and streams are water resources vested in the National Government, in which no private property, right, interest or privilege can subsist

Court orders

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  1. 1.The plaintiffs' notice of motion dated 3/7/2018 is dismissed
  2. 2.The defendants shall have costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 43; Article 43(d); Article 62(1)(i)
  • Land Registration ActSection 28
  • Water Act, 2016Sections 2, 5, 6, 7, 12, 89
  • Water Resources Management Rules, 2017Rule 116
  • Civil Procedure Rules, 2010Order 1 rule 8; Order 1 rule 13

Cases cited (8)

  • Mrao v First American Bank of Kenya Limited & 2 others
    (2003) KLR 125
  • Joseph Mbugua Gichanga v Co-operative Bank of Kenya Ltd
    (2005)
  • Nawaz Abdul Manji & 4 others v Vandeep Sagoo & 8 others
    [2017] eKLR
  • Andrew Ireri Njeru - Embu Nyangi Ndiiri Proposed Society Chairman & others v Daniel Nganga Kangi & another
    [2015] eKLR, HC at Embu Civil Case No. 4 of 2013
  • Edith Wangari Gitata v Athi Water Service Board
    [2012] eKLR
  • Symon Gatuu Kimamo & 587 others v East African Portland Cement Co. Ltd
    [2011] eKLR
  • Giella v Cassman Brown
    (1973) EA 358
  • Mrao Limited v First American Bank of Kenya Limited
    (2003) eKLR
Jurisdiction invoked
Original civil jurisdiction under the Environment and Land Court Act over the dispute concerning land in Loresho South Estate (not expressly cited in the ruling)

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, "Karolyne Mwatha Mburu & 2 others v Athi Water Services Board and Water Resources Authority [2019] KEELC 3921 (KLR)", Case Analysis (2019). Not stated in the judgment (plaint filed 3/7/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3921/eng@2019-03-13

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