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ELCPartially AllowedEnvironment & Land Petition 11 of 2019· [2023] KEELC 17625 (KLR)

Export Processing Zones Authority v Mavoko Water and Sewerage Company Limited & 3 others; Water Services Regulatory Board (Interested Party)

Environment and Land Court of Kenya
17 May 2023
9,014 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by the Environment and Land Court at Machakos (A. Nyukuri, J) determined three interlocutory applications in a constitutional petition by the Export Processing Zones Authority (EPZA) claiming ownership and control of water infrastructure serving the Athi River EPZ, including a 19 km trunk main from Firestone, and alleging trespass, vandalism and unlawful meter installation by Mavoko Water and Sewerage Company and Nairobi Water and Sewerage Company. EPZA sought conservatory orders; the Water Services Regulatory Board sought joinder; the 1st Respondent sought setting aside of interim orders, striking out or staying the Petition as sub judice. The court held it had jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, water being an environmental matter, and that the Water Tribunal had no jurisdiction since the dispute did not arise from decisions of the Cabinet Secretary, Water Resources Authority or WASRB. The Petition was found not sub judice: the pending suits involved different parties and issues, and the Notice of Appeal in Machakos High Court Petition No. 15 of 2019 was deemed withdrawn after 60 days without an appeal. WASRB was joined as an Interested Party having an identifiable regulatory stake. Finding an arguable case and a threat of irreparable harm through water shortage and effluent contamination, the court granted conservatory orders in terms of prayers 5, 6 and 7 of the Motion dated 5th July 2019 and awarded costs of all three applications to the Petitioner. Merits, including ownership, were reserved for trial.

Key legal issues

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01

Jurisdiction of the ELC over the constitutional petition

Holding

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

Reasoning

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.

p. 12
02

Sub judice under Section 6 of the Civil Procedure Act

Holding

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

Reasoning

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.

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Joinder of the Water Services Regulatory Board as Interested Party

Holding

WASRB is a necessary party with a recognizable stake, since the dispute turns on licensing of water service providers

Reasoning

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.

04

Threshold for conservatory orders

Holding

Petitioner demonstrated an arguable case with chances of success and a threat of irreparable harm not compensable in damages

Reasoning

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.

p. 15

Legal principles established

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  • 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

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  1. 1.This court has jurisdiction to hear and determine this Petition
  2. 2.The Water Services Regulatory Board be and is hereby joined to this suit as an Interested Party
  3. 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. 4.Conservatory orders are granted in terms of prayers 5, 6 and 7 of the Notice of Motion dated 5th July 2019
  5. 5.Costs of the three applications are awarded to the Petitioner

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 2, 10, 22, 23, 40, 42, 43, 47, 50, 162(2)(b), 258
  • Export Processing Zones ActCap 517, Section 9(2)(d) and (k)
  • Water Act2016: Sections 5, 8, 24(1), 68, 70, 72, 77, 121, 124, 156, 157; Water Act 2002: Sections 113, 114, 115; repealed Water Act Cap 372
  • Water (Plan of Transfer of Water Services) Rules 2005Rules 5(1)(e), 11A(8)
  • Environment and Land Court ActSection 13(3)
  • Fair Administrative Action Act
  • Civil Procedure ActSection 6
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013Rules 2 and 7
  • Court of Appeal RulesRules 82(1), 83, 84
  • Legal Notice No. 74 of 1997

Cases cited (16)

  • Centre for Rights Education and Awareness (CREAW) & 7 Others v. Attorney General
    [2011] eKLR

    Threshold for conservatory orders - prima facie case and prejudice

  • Board of Management of Uhuru Secondary School v. City County Director of Education & 2 Others
    [2015] eKLR

    Threshold for conservatory orders

  • Kevin K. Muriti & Others v. Kenya School of Law & Others
    [2015] eKLR

    Definition of a prima facie case

  • Mrao v. First American Bank of Kenya Limited & 2 Others
    [2003] eKLR

    Definition of a prima facie case

  • Isaiah Luyara Odando & Another v. Kenya Revenue Authority & 6 Others; Nairobi Branch Law Society of Kenya (Interested Party)
    [2022] eKLR

    Preservation of the substratum of the petition

  • Augustin Michael Mulandi & 2 Others v. Nol Turesh Water and Sanitation Co. Limited
    [2020] eKLR

    ELC jurisdiction over constitutional questions not ousted by Water Tribunal

  • Kenya National Commission on Human Rights v. Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties)

    Sub judice - different issues and parties

  • Justus Aloo Ogeka & 6 Others v. Kenya Union of Commercial Food and Allied Works & 2 Others
    [2018] eKLR

    Notice of Appeal is not an appeal; lapse after 60 days

  • Mae Properties Limited v. Joseph Kibe & Another
    [2017] eKLR

    Notice of Appeal lapses under Court of Appeal Rules

  • Daniel Kaminja & 3 Others (Suing as Westland Environmental Caretaker Group) v. County Government of Nairobi
    [2019] eKLR

    Mootness - petition overtaken by events

  • Anarita Karimi Njeru v. Republic (No. 1)
    [1979] KLR 154

    Precision in pleading constitutional violations

  • Communications Commission of Kenya & 5 Others v. Roya media Services Ltd & 5 Others
    [2014] eKLR

    Constitutional avoidance principle

  • Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR

    Conservatory orders granted on merit, bearing in mind public interest

  • Kenya Electricity Transmission Company Limited v. Kiboth Limited
    [2019] eKLR

    Obligation of material disclosure by parties

  • Kinatwa Cooperative Savings & Credit Society Limited v. Kinatwa Prestige Ltd
    [2021] eKLR

    Sub judice under Section 6 of the Civil Procedure Act

  • Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 Others
    [2014] eKLR

    Definition of an interested party - identifiable stake

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

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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, "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.