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ELCDismissedPetition dated 30th September 2024· [2025] KEELC 398 (KLR)

Itabari & another v Water Resources Authority & 3 others (Environment and Planning Petition E035 of 2024) [2025] KEELC 398 (KLR)

Environment and Land Court
30 January 2025
6,087 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Petitioners, a homeowner and a hotel company on LR 13330/504 and LR 13330/503, petitioned against the Water Resources Authority and the county water services provider. They alleged that unreliable piped water supply compelled them to spend over Kshs 11 million drilling two boreholes under permits granted in 2019. On 23rd August 2024, after the permits had expired, the Respondents disconnected their abstraction equipment and levied an invoice of Kshs 288,419.00 said to cover charges from 2019 to 14th March 2023. The Petitioners sought declarations that this violated Articles 43(1)(b) and (d), 47, 21(2) and 28 of the Constitution and the Fair Administrative Action Act; that Regulations 89, 85 and the Second Schedule of the Water Resources Regulations, 2016 were unconstitutional for imposing open-ended arrears and additional levies; and injunctions to reconnect water without charges and cap arrears at twelve months. The court framed four issues and dismissed the Petition in its entirety. It held that the right to water is not absolute and is conditioned on compliance with permit terms; that the Petitioners still had access to water from the 2nd Respondent's line or by renewing their permits; that the permit documents themselves gave sufficient notice of expiry and the consequences of non-renewal, so Regulation 97(2)'s 14-day notice was inapplicable where the permit had already expired; and that the Petitioners could not use constitutional litigation to bypass the Water Act's permit process or escape payment obligations. Costs were nonetheless not awarded against the Petitioners because the Respondents are government agencies funded by taxpayers. Dated, signed and delivered at Nairobi on 30th January 2025 by A. Omollo, Judge.

Key legal issues

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01

Violation of the right to clean and safe water in adequate quantities and reasonable standards of sanitation

Holding

Not violated; the Petitioners retained access to water from the 2nd Respondent's line and could renew their permits

Reasoning

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.

p. 9
02

Violation of the right to fair administrative action under Article 47

Holding

Not violated; the permits themselves contained sufficient notice of expiry and consequences of non-renewal

Reasoning

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.

p. 10
03

Constitutionality of Regulation 89 of the Water Resources Regulations, 2016

Holding

No declaratory order of unconstitutionality issued; the Petitioners could not use constitutional litigation to escape payment obligations

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 1.The Petition is dismissed with no order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 2(4), 19(1), 19(2), 20(1)-(5), 21(1), 21(2), 22(1), 23(2), 24, 28, 43(1)(b) and (d), 46(1)(c), 47, 69
  • Fair Administrative Action ActSections 4 and 5
  • Water Act, Cap. 372Sections 5, 11, 36, 37, 38(2), 40, 41, 42, 56, 77
  • Water Resources Regulations, 2016Regulations 2, 85, 89, 97(2), Second Schedule, Fourth Schedule
  • Water Resources Management Rules, 2007Regulation 107

Cases cited (2)

  • Anarita Karimi versus Republic
    (….) EKLR
  • Judicial Service Commission v Mbalu Mutava & another
    [2014] eKLR
Jurisdiction invoked
Articles 22(1) and 23(2) of the Constitution (enforcement of Bill of Rights)

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, "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.