Kiao Water Project (Suing thro’ Ibrahim Baariu (Chairman), Miriti M’ikinda (Secretary) & Josphat Kiriinya (Treasurer) v Joseph Mukaria Mungania & another [2021] KEELC 1303 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit was time-barred
The suit was contractual, not tortious, so the limitation defence failed
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.
Jurisdiction and capacity to be sued
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
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.
Whether disconnection of the respondents' water was justified
Disconnection was unjustified; respondents remained paid-up members entitled to water
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.
Whether permanent injunction should issue
Permanent injunction granted, there being special circumstances as the respondents were being denied constitutional and statutory rights to water
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.