Export Processing Zones Authority v Mavoko Water and Sewerage Company Limited & 3 others; Water Services Regulatory Board (Interested Party) (Environment & Land Petition 11 of 2019) [2025] KEELC 1253 (KLR)
The bottom line
#The Environment and Land Court dismissed EPZA's bid to control disputed water infrastructure because it could not prove ownership of it.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency of pleading in a constitutional petition
The petition met the Anarita Karimi Njeru threshold as the provisions infringed and the manner of infringement were discernible.
The court applied Anarita Karimi Njeru as modified by Mumo Matemu, holding that precision does not demand exactitude or formulaic prescription. From the petition's legal foundation, the rights allegedly violated (Articles 10, 40 and 47) and reliefs sought, the issues could easily be discerned, so the petition was properly before the court despite the respondents' objections.
Vesting of the disputed infrastructure in AWWDA and cancellation of the petitioner's permit
The creation of AWWDA had no bearing on the disputed infrastructure or the petitioner's permit; the gazette notice did not cover it and consultation under Section 67 never occurred.
The court compared gazette notice no. 4574 of 2020 (designating national water works vested in AWWDA) with legal notice no. 74 of 1997 defining the petitioner's water undertaking area, finding the areas distinct. There was also no evidence of the stakeholder consultation mandated by Section 67 of the Water Act (2016), confirming the disputed infrastructure was never intended to vest in AWWDA.
Proof of violation of Articles 10, 40 and 47
The petitioner failed to prove ownership of the disputed infrastructure or the alleged acts of trespass, vandalism and interference.
Applying Sections 107-109 of the Evidence Act, the burden lay on the petitioner. It produced no title, search certificate, way leave registration, the plan referenced in gazette notice no. 74 of 1997 or architectural designs; World Bank payment vouchers did not prove ownership. Correspondence from the 2nd respondent showed intent to install a meter without interfering with supply, and allegations against the County Commissioner were wholly unsupported.
Legal principles established
#- Designation of national public water works under Section 8(1) of the Water Act (2016) requires prior stakeholder consultation under Section 67; absent such consultation the infrastructure does not vest in a Water Works Development Agency.
- A constitutional petitioner must prove violations with credible evidence; decisions on violation of constitutional rights cannot rest on unsupported hypotheses.
- A saving provision preserved the petitioner's water undertaking permit under the Water Act 2016.
Court orders
#- 1.The petition dated 5/07/2019 is dismissed.
- 2.Each party shall bear its respective costs, all parties being government entities.
- Jurisdiction invoked
- Constitutional petition under Articles 10, 40 and 47 of the Constitution; court's jurisdiction earlier confirmed in its ruling of 17/05/2023
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) (Environment & Land Petition 11 of 2019) [2025] KEELC 1253 (KLR)", Case Analysis (2025). Petition dated 5/07/2019 (Machakos ELC Constitutional Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1253/eng@2025-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.