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ELCDismissedPetition dated 5/07/2019 (Machakos ELC Constitutional Petition)· [2025] KEELC 1253 (KLR)

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)

Environment and Land Court of Kenya
11 March 2025
6,043 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioner, a state corporation established under the Export Processing Zones Authority Act, sued several public water entities claiming that since 2018/2019 they had trespassed on, vandalised and interfered with World Bank-financed water and sewerage infrastructure serving the Athi River EPZ and surrounding areas, contrary to Articles 10, 40 and 47 of the Constitution. It sought declarations, a permanent mandatory injunction compelling removal of meters and installations, permanent injunctions, and costs. The respondents and interested party countered that the infrastructure was public property, that the petitioner's water undertaker permit had lapsed with the Water Act 2002, and that designation of national public works under gazette notice no. 4574 of 2020 divested management to AWWDA, rendering the suit moot. The court first confirmed, relying on its earlier ruling and Angote J's decision in Kapa Oil Refineries, that the suit was not res judicata and that the petitioner's permit survived under the saving provisions of Sections 156 and 157 of the Water Act 2016. It held the petition met the Anarita Karimi Njeru threshold. However, comparing the gazette notices, it found the disputed infrastructure was never vested in AWWDA, and no Section 67 consultation occurred. On the merits, applying Sections 107-109 of the Evidence Act, it found the petitioner produced no title, search certificate, way leave registration or the plan referenced in the 1997 notice, and its allegations of trespass, meter installation and interference were unsubstantiated. The petition was dismissed with each party bearing its own costs, all parties being government entities.

Key legal issues

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01

Sufficiency of pleading in a constitutional petition

Holding

The petition met the Anarita Karimi Njeru threshold as the provisions infringed and the manner of infringement were discernible.

Reasoning

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.

p. 11
02

Vesting of the disputed infrastructure in AWWDA and cancellation of the petitioner's permit

Holding

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.

Reasoning

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.

p. 12
03

Proof of violation of Articles 10, 40 and 47

Holding

The petitioner failed to prove ownership of the disputed infrastructure or the alleged acts of trespass, vandalism and interference.

Reasoning

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.

p. 14

Legal principles established

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  • 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

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  1. 1.The petition dated 5/07/2019 is dismissed.
  2. 2.Each party shall bear its respective costs, all parties being government entities.

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 191, 21, 40(1), 43(1)(d), 46, 47(1), 65, Part 1 of the Fourth Schedule
  • Water Act2016: Sections 5, 8, 8(1), 67, 68, 70, 72, 74, 74(4), 77, 85(3), 113, 139(7), 142(2)(i), 156, 156(4), 157
  • Water Act (repealed, Cap 372)general reference
  • Water Act (repealed, 2002)Sections 111, 112, 113, 114, 115
  • Export Processing Zones Authority Actgeneral reference (EPZA Act)
  • Water (Plan of Transfer of Water Services) Rules, 2005Rule 5, Regulation II (A) (8), Section 1.B.2
  • Evidence ActSections 107, 107(1), 107-109

Cases cited (5)

  • Anarita Karimi Njeru Vs. Republic
    [1979] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Kapa Oil Refineries Limited & 7 others v Export Processing Zones Authority & 2 others
    [2019] eKLR
  • Peter Ngari Kagume & 7 Others V Attorney General
    [2009] eKLR
  • Leonard Otieno v Airtel Kenya Ltd
    (2018) eKLR
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

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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) (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.