Salford Investment Limited v Nairobi City Water & Sewarage Company Limited (Environment & Land Case E346 of 2021) [2022] KEELC 3943 (KLR)
The bottom line
#A Kenyan court allowed only a small refund in a water meter dispute, rejecting both the customer's damages claims and the water company's counterclaim for unpaid bills.
What this practically means
#Executive summary
#Key legal issues
#Whether the water meter was tampered with or faulty
The court found the meter was either faulty or tampered with, inferring this from the Plaintiff's own purchase of a new meter, though the Defendant's electronic print-outs were inadmissible for want of a certificate
The Defendant's meter readings were screenshots/print-outs produced without a certificate under Section 106 of the Evidence Act and could not be considered. However, the Plaintiff's conduct in purchasing a replacement meter after disconnection pointed to the existing meter being faulty or tampered with. The court thus found tampering or fault established by inference from the Plaintiff's own conduct rather than the Defendant's electronic evidence.
Right of entry onto the Plaintiff's premises
DW1, being an officer of the Defendant, was an 'authorized person' under Section 60 of the Water Act with a right of entry to check for tampering
Section 60 of the Water Act 2016 defines an authorized person as one entering land or premises pursuant to a right conferred under the Act, and such entry for inspection purposes does not require prior reasonable notice where tampering is suspected. The court rejected the Plaintiff's submission that DW1 was not a gazetted water inspector and held the entry lawful.
False imprisonment of Jennifer Muthoki
False imprisonment and malicious arrest were not proved; the arrest was for statutory offences, there was no malice, and detention was at a police station beyond the Defendant's control
The arrest was not disputed but the court applied the burden and standard of proof. PW2 was arrested for offences under Section 145 of the Water Act, granted cash bail by the OCS, and detained at Soweto Police Station where the Defendant had no control over her. Payment of Kshs 100,000/- was per the water tariff structure for water fraud, negating extortion and malice. The claim therefore failed on the balance of probabilities.
Plaintiff's entitlement to reliefs
The Plaintiff's suit largely failed except for a refund of Kshs 25,800/- paid for a new meter the Defendant never installed
Since the Defendant accepted payment for procurement of a new water meter but never installed or replaced it, the money remained in the Defendant's possession without consideration. The court ordered the refund to be effected as a deduction from future monthly water bills rather than a direct payment.
Defendant's counterclaim for Kshs 451,400/-
The counterclaim failed as the exact outstanding amount was not proved
DW1 conceded the counterclaim figure of Kshs 451,400/- differed from the disconnection order figure of Kshs 511,995.31 and that the difference might arise from wrong billing requiring further verification. This uncertainty undermined proof of the debt, and with no evidence supporting the counterclaim, the prayers were declined.
Legal principles established
#- Electronic records such as meter print-outs must be accompanied by a certificate under Section 106 of the Evidence Act to be admissible
- A party's officer entering premises pursuant to rights under the Water Act qualifies as an 'authorized person' who may enter to inspect a meter
- The gist of false imprisonment is unlawful detention without justification; where detention is effected by police the detaining party must show malice and control over the detention
- A counterclaim is a suit and must be proved to the required standard like any other claim
Court orders
#- 1.The Plaintiff is entitled to a refund of Ksh 25,800/= which will be deducted from the Plaintiff's subsequent monthly water bill as and when it falls due
- 2.The prayers in the counter claim are declined
- 3.Each party to bear its own costs of the suit and the counterclaim
- Jurisdiction invoked
- Original civil jurisdiction over claims in tort and contract (Water Act 2016 dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salford Investment Limited v Nairobi City Water & Sewarage Company Limited (Environment & Land Case E346 of 2021) [2022] KEELC 3943 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3943/eng@2022-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.