Muema Kitulu v Nol Turesh Pipeline Bulk Water Co. Limited [2021] KEELC 3437 (KLR)
The bottom line
#The High Court adopted a 2015 water dispute consent settlement, letting the customer enforce it because the Water Appeals Board no longer exists.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court has jurisdiction to adopt a consent judgment of the defunct Water Appeals Board
Yes; under Article 165(6) & (7) the High Court's supervisory jurisdiction extends to the Water Appeals Board, and where the successor Water Tribunal has not been established, the court may recall the decision and adopt it as its own judgment.
The court found the consent of 15th April 2015 was entered by the Chairman of the Water Appeal Board in the presence of both parties and never set aside. The Water Act 2002 establishing the Board was repealed and the successor Tribunal under section 119 of the Water Act 2016 is yet to be established with no rules in place. Rule 34 of the Water Appeal Board Rules 2007 permits filing of Board decisions in the High Court for enforcement as orders of that court. Relying on Kalala P. Musankishay and the guidelines in DPP v Perry Mansukh Kansagara, the court held that intervention was warranted to ensure fair administration of justice.
Whether the Respondent's failure to respond meant the consent was uncontroverted
Yes; the Respondent filed a notice of appointment of advocates but no replying affidavit, so the Applicant's averments on the consent stood uncontroverted.
The firm of Messrs Fatah & Company Advocates filed a notice of appointment but failed to file any replying affidavit to controvert the Applicant's averments. The court noted there was no indication that the consent dated 15th April 2015 was ever set aside, and the annexed copy confirmed it was entered by the Board's Chairman in the presence of both parties.
Legal principles established
#- Under the Water Appeal Board Rules 2007, the decision of the Board and a draft decree shall be filed in the High Court by the parties for execution and enforcement as if it were an order of that Court.
- The High Court's supervisory jurisdiction under Article 165(6) and (7) extends to any body or authority exercising judicial or quasi-judicial functions and permits the court to recall and adopt decisions of a defunct tribunal where necessary to ensure the fair administration of justice.
Court orders
#- 1.The consent judgment of the Water Appeals Board in Appeal No. 7 (W/S) of 2012 issued on 15th April, 2015 be and is hereby adopted as a judgment of the High Court (disputed billing of Kshs. 80,240/= shared equally between the parties with a credit of Kshs. 40,120.00 into the Appellant's account; both parties' water meters relocated to a suitable point just inside the Appellant's main gate with a pressure release valve fitted before both meters at the Appellant's costs; the Respondent to bear half costs of the Appeal, to be agreed within fourteen days and in default assessed, the value of costs to be credited into the Appellant's water account)
- 2.The costs of this application awarded to the Applicant, who is directed to proceed to tax his party and party costs in the Water Appeals Board proceedings
- On appeal from
- Water Appeals Board
- Appeal No. 7 (W/S) of 2012
- Jurisdiction invoked
- Articles 165(6) & (7) of the Constitution; Sections 1B, 3, 3A, 63(c) Civil Procedure Act; Order 51 Rule 1 Civil Procedure Rules; Sections 125 and 156(2)(b) Water Act No. 43 of 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muema Kitulu v Nol Turesh Pipeline Bulk Water Co. Limited [2021] KEELC 3437 (KLR)", Case Analysis (2021). Notice of Motion dated 21st October 2020 (Water Appeal No. 7 (W/S) of 2012 consent). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3437/eng@2021-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.