Owiti v Kisumu Water and Sanitation Company Limited & another; County Government of Kisumu (Interested Party)
The bottom line
#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
#Executive summary
#Key legal issues
#Public participation in approval of water tariffs
The court found that public participation was carried out; residents were invited but did not participate
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.
Whether the 2nd respondent had power to approve the tariff
The court accepted the 2nd respondent acted within its statutory powers under the Water Act
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.
Whether leave should operate as stay under Order 53 rule 1(4)
Stay refused because the impugned decision had already been implemented
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.
Legal principles established
#- 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
#- 1.The application dated February 25, 2022 seeking leave to operate as stay is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.