Itabari & another v Water Resources Authority & 3 others (Environment and Planning Petition E035 of 2024) [2025] KEELC 398 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that the right to water depends on complying with permit rules—missing a permit renewal dooms a constitutional challenge.
What this practically means
#Executive summary
#Key legal issues
#Violation of the right to clean and safe water in adequate quantities and reasonable standards of sanitation
Not violated; the Petitioners retained access to water from the 2nd Respondent's line and could renew their permits
The Petitioners admitted connection to the 2nd Respondent's supply and had the option of renewing their abstraction permits. They did not plead that the charges were unreasonably expensive nor that they were denied access to water. Enforcement action for failure to comply with permit conditions is a legislative measure to achieve sustainable utilisation of water resources under Article 69 of the Constitution.
Violation of the right to fair administrative action under Article 47
Not violated; the permits themselves contained sufficient notice of expiry and consequences of non-renewal
The permit letters spelt out expiry dates and warned that a penalty would apply if not renewed, and paragraph (d) of the permit provided for cancellation on expiry under section 38. Section 38(2) notice applies only where cancellation is for breach of conditions; here the permit had expired, so nothing remained to cancel. Regulation 97(2) was inapplicable because the permit had already expired.
Constitutionality of Regulation 89 of the Water Resources Regulations, 2016
No declaratory order of unconstitutionality issued; the Petitioners could not use constitutional litigation to escape payment obligations
The impugned invoice's basis was unclear from the pleadings, but the Petitioners never complained to the Respondents that it was irregular and never exhibited their self-assessment forms or payment records. Rights under Article 43 come with the obligations to pay for water used and to renew permits before expiry, and default exposed them to curtailment of the right.
Legal principles established
#- A permit holder's entitlement to abstract water lapses with the permit, and enforcement action after expiry without further notice does not violate fair administrative action where the permit itself spelt out the expiry date and consequences of non-renewal
- Socio-economic rights under Article 43 are not absolute and are dependent on compliance with applicable statutory conditions
- Parties cannot bypass statutory processes by framing ordinary regulatory disputes as constitutional rights violations
Court orders
#- 1.The Petition is dismissed with no order as to costs
- Jurisdiction invoked
- Articles 22(1) and 23(2) of the Constitution (enforcement of Bill of Rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Itabari & another v Water Resources Authority & 3 others (Environment and Planning Petition E035 of 2024) [2025] KEELC 398 (KLR)", Case Analysis (2025). Petition dated 30th September 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/398/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.