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ELCDismissedEnvironment and Land Judicial Review Case E013 of 2022· [2022] KEELC 13366 (KLR)

Owiti v Kisumu Water and Sanitation Company Limited & another; County Government of Kisumu (Interested Party)

Environment and Land Court of Kenya
30 September 2022
5,664 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~23 min to read original · ~4 min brief

The bottom line

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A Kisumu court refused to suspend new water tariffs because they were already in force, and found residents who skipped public consultation could not later complain about it.

What this practically means

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Executive summary

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The applicant, a water consumer in the Obunga Slums area of Kisumu, applied by chamber summons dated February 25, 2022 for leave to apply for judicial review orders of certiorari and prohibition against the new water tariff structure for 2021/2022 to 2024/2025 approved by the Water Services Regulatory Board and published by Kisumu Water and Sanitation Company Limited. He contended that water and sanitation is a devolved county function, that the regulator acted ultra vires in approving the tariff without the County Government's authority, that there was no adequate public participation, and that the up to 87% increase infringed the right to affordable water. He sought leave, and an order that leave operate as stay of the tariff's implementation. The 1st respondent countered that the applicant is an advocate barred by section 121 of the Water Act, that extensive public consultation was conducted including a hybrid forum on October 1, 2021, and that the tariff was pro-poor and necessary to meet costs. The 2nd respondent justified its statutory mandate under sections 70, 72 and 139 of the Water Act and section 120 of the County Government Act as amended, and opposed stay as the tariff was already implemented. The court found public participation was carried out and residents were invited but did not participate, that the regulator acted within its powers, and that since the impugned decision had already been implemented, leave could not operate as stay. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Public participation in approval of water tariffs

Holding

The court found that public participation was carried out; residents were invited but did not participate

Reasoning

Exhibit PN-2 showed the 1st respondent invited the 2nd respondent for public consultation and notices were published per Gazette Notice No 9378. The 2nd respondent received no comments from Obunga Slums residents during the consultation period. The court held the residents were invited but failed to take part, so the allegation of no tangible public participation failed.

p. 9
02

Whether the 2nd respondent had power to approve the tariff

Holding

The court accepted the 2nd respondent acted within its statutory powers under the Water Act

Reasoning

Relying on section 120 of the County Government Act as amended by section 159(b) of the Water Act, the court accepted that tariffs and pricing policies are subject to existing National Government laws and policies, so the regulator proceeded within its powers in approving the tariff structure.

p. 9
03

Whether leave should operate as stay under Order 53 rule 1(4)

Holding

Stay refused because the impugned decision had already been implemented

Reasoning

The court applied Order 53 rule 1(4) and case law holding that stay preserves the status quo and is granted sparingly where a decision has been implemented. Since the new tariff structure was already in force, the application for leave to operate as stay lacked merit and was dismissed.

p. 10

Legal principles established

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  • Where a decision challenged by judicial review has already been implemented, leave should not ordinarily operate as a stay
  • Where implementation of a decision is of a continuing nature, it may still be possible to suspend it

Court orders

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  1. 1.The application dated February 25, 2022 seeking leave to operate as stay is dismissed
  2. 2.Each party to bear its own costs
Jurisdiction invoked
Articles 162(2)(b) and 165 of the Constitution; Order 53 of the Civil Procedure Rules, 2010; sections 8 and 9 of the Law Reform Act (Cap 26)

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, "Owiti v Kisumu Water and Sanitation Company Limited & another; County Government of Kisumu (Interested Party)", Case Analysis (2022). Environment and Land Judicial Review Case E013 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13366/eng@2022-09-30

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