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ELCAllowedNot stated in the ruling beyond the application dated 29th September 2021· [2021] KEELC 815 (KLR)

Salford Investment Limited v Nairobi City Water And Sewerage Co. Ltd [2021] KEELC 815 (KLR)

Environment and Land Court / High Court of Kenya at Nairobi (Judge: E. K. Wabwoto)
19 November 2021
3,430 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This interlocutory ruling by E. K. Wabwoto, J, delivered virtually at Nairobi on 19 November 2021, determined the Applicant's application dated 29 September 2021 seeking temporary injunctions restraining the Respondent water company from interfering with the connection of the borehole water meter and the sewer line serving the Applicant's premises on L.R No. 9042/570, Airport North Road, Embakasi. The Applicant alleged that on 1 September 2021 the Respondent disconnected the water meter without notice or documented proof of the alleged tampering, demanded a fraud charge of Ksh 100,000/- and Ksh 25,800/- for a new meter, and issued a disputed water bill of Ksh 511,995.31, causing tenants to threaten vacation. The Respondent opposed, citing negative meter readings over successive billing cycles and a liability form signed by the Applicant's advocate acknowledging tampering, and alleging non-disclosure of the fraud penalty. The court framed a single issue: whether the Applicant met the threshold for an injunction. Applying the Giella and Nguruman principles and Mrao's definition of a prima facie case, the court found the Applicant had disclosed the penalty and that the cause of the negative readings could not be conclusively determined at the interlocutory stage, hence a prima facie case existed. Relying on the normative content of the right to water, it held the loss was irreparable and the balance of convenience favoured the Applicant. The application was allowed with conditional injunctions, an order to keep paying current bills, deferral of the disputed Ksh 451,400/- bill to trial, and each party bearing its own costs.

Key legal issues

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01

Whether the Applicant established a prima facie case

Holding

A prima facie case was established; the Applicant had disclosed the fine of Ksh 100,000/-, which it alleged was paid under coercion, and the cause of the negative meter readings could not be conclusively determined at the interlocutory stage.

Reasoning

The Respondent alleged tampering based on negative meter readings and a liability form signed by the Applicant's advocate. However, the negative readings could equally have resulted from an erroneous reading of the meter. Further, the Respondent's claim of concealment failed because the Applicant had disclosed the fine and its coercive payment in the supporting affidavit and the plaint. Disputed facts require only a prima facie view, not conclusive findings.

p. 4
02

Whether the Applicant would suffer irreparable loss not compensable by damages

Holding

Yes - the cumulative effect of lack of water on human life and tenants' health cannot be quantified in damages.

Reasoning

While the price of water is quantifiable through bills, the significance of water to life and to the tenants occupying the premises cannot be compensated by an award of costs. The court invoked the normative content of the right to water (UN General Comment 15 - availability, accessibility, quality) and found that health concerns arising from lack of water may not be compensated by costs.

p. 4
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Where the balance of convenience lies

Holding

In favour of the Applicant, given the importance of water and the presence of tenants who would also suffer.

Reasoning

Water is an important commodity that should be accessed by all. Beyond the Applicant, tenants on the premises would also suffer if water access were disrupted. The balance of convenience therefore tilts toward maintaining the water supply and sewer connection pending trial.

p. 4

Legal principles established

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  • An applicant for an interlocutory injunction must sequentially establish a prima facie case, irreparable injury, and that the balance of convenience lies in his favour.
  • A prima facie case in civil matters is one where a right has apparently been infringed, calling for an explanation or rebuttal from the opposite party.
  • At the interlocutory stage the court may adopt a prima facie view where facts are disputed and must not make conclusive findings of fact or law.
  • The lack of water in human life is not compensable in damages; its loss may be irreparable.

Court orders

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  1. 1.The Applicant to continue paying the current water bill as and when it falls due.
  2. 2.The issue of the undisputed water bill of Ksh 451,400/- to be resolved during the trial of the suit.
  3. 3.A temporary injunction restraining the Respondent, its agents or servants from interfering with the connection of the borehole water meter in order to cut off the Applicant's water supply pending the hearing and determination of the suit or until further orders.
  4. 4.A temporary injunction restraining the Respondent, its agents or servants from interfering with the sewerage and sewer line of the Applicant unless otherwise lawfully provided under any other written statute pending the hearing and determination of the suit or until further orders.
  5. 5.Each party to bear its own costs of the application.

Authorities

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Legislation

  • Civil Procedure Actsection 1A(1)
  • Civil Procedure Actsection 1A(2)

Cases cited (8)

  • East African Industries vs. Trufoods
    [1972] EA 420
  • Giella vs. Cassman Brown & Co. Ltd
    [1973] EA 358
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Kenya Commercial Finance Co. Ltd V. Afraha Education Society
    [2001] Vol. 1 EA 86
  • Airland Tours & Travel Limited vs. National Industrial Credit Bank
    Nairobi (Milimani) HCCC No. 1234 of 2002
  • Dr. Simon Waiharo Chege vs. Paramount Bank of Kenya Ltd.
    Nairobi (Milimani) HCCC No. 360 of 2001
  • Esso Kenya Limited vs. Mark Makwata Okiya
    Civil Appeal No. 69 of 1991
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
Jurisdiction invoked
Original civil jurisdiction; Civil Procedure Act (sections 1A(1) and 1A(2) invoked)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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

Cite this brief

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Cite this brief

Caselaw, "Salford Investment Limited v Nairobi City Water And Sewerage Co. Ltd [2021] KEELC 815 (KLR)", Case Analysis (2021). Not stated in the ruling beyond the application dated 29th September 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/815/eng@2021-11-19

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