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ELCDismissedAppeal from Maua CMCC No. 295 of 2015· [2021] KEELC 1303 (KLR)

Kiao Water Project (Suing thro’ Ibrahim Baariu (Chairman), Miriti M’ikinda (Secretary) & Josphat Kiriinya (Treasurer) v Joseph Mukaria Mungania & another [2021] KEELC 1303 (KLR)

Environment and Land Court
27 October 2021
2,676 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court confirmed that water projects cannot cut off paid-up members' water without following due process, and office bearers can be sued personally.

What this practically means

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Executive summary

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This was a first appeal against the judgment of Hon. J. Wang'ang'a SRM in Maua CMCC No. 295 of 2015, which had allowed two respondents' claim for reconnection of water supply and a permanent injunction against Kiao Water Project office bearers. The appellants raised five grounds: limitation, jurisdiction, badness of the judgment, weight of evidence, and failure of proof. The court, guided by Selle v Associated Boat Co Ltd, re-evaluated the evidence. On limitation, it found the claim was contractual (breach of water supply rights as paid-up members), not tortious, the tort argument having been raised for the first time in submissions; disconnection occurred on 11.6.2015 and suit was filed within time. On jurisdiction, the Water Act 2016 tribunal's mandate did not cover contractual breaches, so the magistrate's court had jurisdiction; the appellants were properly sued personally given the project's WARMA permit and DW1's authority to defend, estoppel preventing denial. On the merits, the appellants failed to produce the project constitution, breach notices or expulsion minutes, and bore the burden under sections 107 and 108 of the Evidence Act. The court emphasized Article 43 of the Constitution and section 63 of the Water Act on access to water, found the respondents were denied fair hearing, and held there were special circumstances justifying the permanent injunction and reconnection. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether the suit was time-barred

Holding

The suit was contractual, not tortious, so the limitation defence failed

Reasoning

The pleadings and evidence concerned membership of the water project and breach of a contractual water supply relationship, not tort. The tort argument was raised for the first time in submissions without supporting evidence, and disconnection occurred on 11.6.2015, with suit filed on 9.12.2015 within the limitation period for contract.

p. 3
02

Jurisdiction and capacity to be sued

Holding

The Water Act 2016 tribunal's mandate did not cover breach of contractual rights, so the trial court had jurisdiction; the appellants were properly sued given the permit and consent to represent the project

Reasoning

The water tribunal's statutory mandate does not extend to contractual disputes. DW1 had authority to act for the project and by estoppel could not deny personal responsibility for the disconnection. A permitted service provider cannot plead lack of capacity for breach of user rights.

p. 3
03

Whether disconnection of the respondents' water was justified

Holding

Disconnection was unjustified; respondents remained paid-up members entitled to water

Reasoning

The appellants failed to produce the constitution, notices of breach or expulsion minutes to counter the respondents' evidence. Respondents held current membership cards and subscriptions, and were denied fair hearing. Access to water is a constitutional right under Article 43 and a statutory right under section 63 of the Water Act.

p. 4
04

Whether permanent injunction should issue

Holding

Permanent injunction granted, there being special circumstances as the respondents were being denied constitutional and statutory rights to water

Reasoning

A permanent injunction requires a high level of proof, but the appellants acted in utter disregard of the law by disconnecting water without notice, without due process under their own constitution, and contrary to the water sector regulations, amounting to denial of the respondents' constitutional right to water.

p. 4

Legal principles established

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  • On a first appeal the court must re-assess and re-evaluate the evidence and draw its own conclusions, making allowance for not having heard the witnesses
  • The burden of justifying disconnection lay on the appellants under sections 107 and 108 of the Evidence Act
  • A permitted water service provider cannot deny its members access to water in breach of its own constitution and the Water Act

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • Water ActSections 63 (and establishment of water tribunal)
  • Constitution of KenyaArticle 43
  • Evidence ActSections 107 and 108

Cases cited (4)

  • Selle & Another -vs- Associated Boat Co. Ltd
    [1968] EA 123
  • Daniel K. Yego & 3 Others -vs- Paulina Nekesa Kode
    [2016] eKLR
  • East Africa Pentecostal Churches Registered Trustees & 1754 Others -vs- Samuel Muguna Henry & 4 Others
    [2015] eKLR
  • Jamii Bora Bank Ltd. & Another -vs- James Owek Ochieng
    [2020] eKLR
On appeal from
Senior Resident Magistrate's Court, Maua
Maua CMCC No. 295 of 2015
Jurisdiction invoked
First appeal from the magistrates' court; suit founded on contract for water supply under the Water Act 2016 and Article 43 of the Constitution

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, "Kiao Water Project (Suing thro’ Ibrahim Baariu (Chairman), Miriti M’ikinda (Secretary) & Josphat Kiriinya (Treasurer) v Joseph Mukaria Mungania & another [2021] KEELC 1303 (KLR)", Case Analysis (2021). Appeal from Maua CMCC No. 295 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1303/eng@2021-10-27

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