Export Processing Zones Authority v Mavoko Water and Sewerage Company Limited & 3 others; Water Services Regulatory Board (Interested Party)
The bottom line
#Kenya's Environment and Land Court confirmed it can hear EPZA's water infrastructure dispute, joined the water regulator, and protected EPZA's infrastructure pending trial.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over the constitutional petition
The court has jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act; water is an environmental matter and the court has supervisory jurisdiction under Section 124 of the Water Act
The dispute concerns acts complained of against the Petitioner's water infrastructure, not decisions of the Cabinet Secretary, Water Resources Authority or WASRB. The Water Tribunal's jurisdiction under Section 121 of the Water Act is limited to appeals from those institutions' decisions, so this constitutional petition falls outside its remit and within the ELC's mandate.
Sub judice under Section 6 of the Civil Procedure Act
The Petition is not sub judice; the pending suits involve different parties and issues, and the Notice of Appeal in Petition No. 15 of 2019 was deemed withdrawn
ELC No. 35 of 2010 was filed by non-parties on a different issue (levies for water tariffs); ELC No. 315 of 2009 concerned whether EPZA exceeded its mandate outside its jurisdiction. A Notice of Appeal is merely an intention to appeal and lapses after 60 days without an appeal being filed under Rule 83 of the Court of Appeal Rules.
Joinder of the Water Services Regulatory Board as Interested Party
WASRB is a necessary party with a recognizable stake, since the dispute turns on licensing of water service providers
The issues include whether the Petitioner needs a licence from WASRB and the validity of licences issued to the 1st and 2nd Respondents. Under Rule 7 of the Mutunga Rules and the Trusted Society definition, a person with an identifiable stake affected by the decision may be joined, and WASRB's regulatory mandate satisfies that test.
Threshold for conservatory orders
Petitioner demonstrated an arguable case with chances of success and a threat of irreparable harm not compensable in damages
The Petitioner showed an apparent legal interest in the suit infrastructure calling for legal protection, raising questions whether its control was ousted by the Water Act 2016. The alleged interference and vandalism threatened operations, worker health through effluent contamination, and economic survival - harms not adequately compensable in damages.
Legal principles established
#- A court without jurisdiction must down its tools immediately
- The ELC has jurisdiction over constitutional disputes concerning water infrastructure as an environmental matter, and such disputes are not for the Water Tribunal where they do not arise from decisions of the Cabinet Secretary, Water Resources Authority or WASRB
- A Notice of Appeal lapses if no appeal is filed within 60 days under Rule 83 of the Court of Appeal Rules
- An interested party must show an identifiable stake in the proceedings affected by the court's decision
- Conservatory orders require a prima facie case with likelihood of success and a threat of irreparable injury not compensable in damages
Court orders
#- 1.This court has jurisdiction to hear and determine this Petition
- 2.The Water Services Regulatory Board be and is hereby joined to this suit as an Interested Party
- 3.The Interested Party is granted leave to file and serve their pleadings and any other relevant documents in support of their case, within 14 days of this ruling
- 4.Conservatory orders are granted in terms of prayers 5, 6 and 7 of the Notice of Motion dated 5th July 2019
- 5.Costs of the three applications are awarded to the Petitioner
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with Section 13 of the Environment and Land Court Act and Section 124 of the Water Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Export Processing Zones Authority v Mavoko Water and Sewerage Company Limited & 3 others; Water Services Regulatory Board (Interested Party)", Case Analysis (2023). Environment & Land Petition 11 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17625/eng@2023-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.