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ELCPartially AllowedNot stated in judgment· [2025] KEELC 4314 (KLR)

Okwaro (Suing as the Registered Proprietor and Manager of Boston High School and Boston Primary School) v Nairobi City Water & Sewerage Company Limited (Environment & Land Case E092 of 2025) [2025] KEELC 4314 (KLR)

Environment and Land Court
10 June 2025
2,172 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Nairobi's water company must leave licensed boreholes serving two schools alone for one year, because cutting off water harms beyond what money can fix.

What this practically means

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Executive summary

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This was an interlocutory Notice of Motion dated 24 February 2025 by the Plaintiff, Stephen Etoyi Okwaro, against the Nairobi City Water & Sewerage Company Limited, seeking an injunction restraining the Respondent from disconnecting, vandalising or tampering with boreholes on LR No. 13XX6/045, LR No. 13XX6/1X9 and Block A 4X3, which serve Boston High School and Boston Primary School, and a declaration that a disconnection order issued on 17 February 2025 was unconstitutional and ultra vires. The Applicant relied on a 'no objection letter' from the Respondent and WRA authorization to drill the boreholes, and alleged that Respondent officers forcibly entered his premises without notice, issued a disconnection order and removed meters. The Respondent opposed the application through its Zonal Coordinator, Boniface Kimorop, contending that WASREB and WRA were not joined, that the Applicant had terminated sewer account 5239959 after installing a biodigester, and that he supplied water commercially without a WASREB licence. Applying Giella vs Cassman Brown and Mrao Ltd v First American Bank, and endorsing Azalea Holdings and Salford Investment, Christine Ochieng J held that the Applicant had established a prima facie case, that damages were inadequate because water is life, and that the Respondent should have issued proper notice rather than acting arbitrarily. Non-joinder of the regulators did not bar the relief. The court found the application partially merited, granted prayer No. 4 only as a one-year temporary injunction and ordered costs in the cause.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success

Holding

Yes - the Plaintiff was licensed by WRA to drill the boreholes and the boreholes supplied water to schools on the suit lands

Reasoning

The court applied Giella vs Cassman Brown and the Mrao definition of a prima facie case. The undisputed evidence was that WRA granted authorization to drill and installed meters on the boreholes. The Respondent did not dispute the authorization but only its conditions, and no complaint from WRA or WASREB against the boreholes was shown. The Respondent itself interfered with the boreholes, which was the fulcrum of the dispute, establishing a prima facie case.

p. 4
02

Whether the Applicant would suffer irreparable loss not compensable by damages

Holding

Yes - damages are inadequate where water supply to schools is disrupted

Reasoning

Relying on Azalea Holdings and Salford Investment, the court associated itself with the proposition that water is life and its loss cannot be quantified in monetary terms. The boreholes were the sole source of water for Boston High School and Boston Primary School, so interference with them caused irreparable harm beyond monetary compensation.

p. 4
03

Whether failure to join WASREB and WRA defeated the application

Holding

No - non-joinder did not bar the injunction

Reasoning

The Respondent argued the regulators should have been enjoined. The court noted there was no indication that WRA or WASREB had raised complaints against the Applicant regarding the boreholes; it was the Respondent that interfered with the boreholes, making it the proper party to restrain.

p. 4
04

Whether allegations that the Applicant supplied water commercially without a WASREB licence defeated the claim

Holding

No - the interlocutory injunction issued notwithstanding those allegations, which remain for trial

Reasoning

The Respondent contended the Applicant supplied water to neighbours without a WASREB licence and used a biodigester to avoid sewer levies. The court did not resolve these disputes at the interlocutory stage, resting on the undisputed WRA authorization and the school use of the boreholes, while limiting the injunction to one year pending hearing of the suit.

p. 4

Legal principles established

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  • Where the disconnection of a water source is threatened or has occurred, damages are inadequate because water is equated to life
  • A water utility must follow proper legal process, including issuing proper notice, before interfering with a lawfully licensed borehole; arbitrary interference supports an interlocutory injunction

Court orders

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  1. 1.That pending the hearing and determination of this suit, a temporary injunction do issue for one year, restraining the Respondent, its agents, servants, employees, or any person acting under its authority from disconnecting, interfering with, vandalizing, or otherwise tampering with the boreholes situated on the Applicant’s properties, namely LR No. 13XX6/045, LR No. 13XX6/1X9 and Block A 4X3 or imposing metering requirements on the same.
  2. 2.Costs of this application will be in the cause.
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (not expressly cited in the extract; suit concerns land and boreholes on LR No. 13XX6/045, LR No. 13XX6/1X9 and Block A 4X3)

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, "Okwaro (Suing as the Registered Proprietor and Manager of Boston High School and Boston Primary School) v Nairobi City Water & Sewerage Company Limited (Environment & Land Case E092 of 2025) [2025] KEELC 4314 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4314/eng@2025-06-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.