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ELCStruck OutAmended Petition dated 25.02.2025 (Eldoret ELC)· [2025] KEELC 6229 (KLR)

Menjo & another v Eldoret Water & Sanitation Limited & another; Sixty-Four Residents Association, Eldoret (Interested Party) (Environment and Land Petition E009 of 2024) [2025] KEELC 6229 (KLR)

Environment and Land Court
16 September 2025
EWEMMANUEL M. WASHE
4,805 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Eldoret struck out a challenge to higher water tariffs, ruling that complaints about regulator decisions must first go to the Water Tribunal.

What this practically means

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Executive summary

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The two Petitioners, residents of Uasin Gishu County, petitioned against Gazette Notice No. 2825 dated 04.10.2024 by which the Water Services Regulatory Board approved increased water and sewerage tariffs for Eldoret Water and Sanitation Company for 2023/2024 to 2028/2029. They alleged violations of Articles 10 (public participation), 46 (consumer rights) and 47 (fair administrative action), citing a venue change for the consultative meeting, publication in 'My Gov' rather than a national newspaper, radio advertisement on a local station, a 20-day instead of 30-day comment window, non-publication of the decision and reasons, and the 300% increment's exorbitance. They sought declarations, certiorari, prohibition and mandamus. The Respondents countered that the process complied with Section 139 of the Water Act, that notices were published in the Star newspaper and local radio stations per a Principal Secretary's directive, that a hybrid consultative meeting was held on 15.05.2024 with approval by a show of hands, and that the Petition was premature for failure to exhaust the Water Tribunal mechanism under Sections 119 and 121. The Interested Party supported the Petition, alleging the participants were ferried in or were employees. The Court held that disputes over Regulatory Board decisions must first go to the Water Tribunal, that Section 121(1) is mandatory, and that the Court has only appellate jurisdiction under Section 124. It also held a tariff review is not an automatic rights infringement and the Petitioners proved no hardship. The Petition was struck out as premature, the interim stay orders were discharged, and the Petitioners were condemned to costs of the Petition and the application dated 14.11.2024.

Key legal issues

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01

Whether the Petition was premature for failure to exhaust the Water Tribunal dispute-resolution mechanism

Holding

Yes; the Petition contravened Sections 119 and 121 of the Water Act, 2016 and was struck out

Reasoning

The Gazette Notice was published by the 2nd Respondent as the Regulatory Board. Section 121(1), couched in mandatory terms ('shall'), requires persons directly affected by Regulatory Board decisions to first go to the Water Tribunal. The Court's jurisdiction is appellate only under Section 124. The dispute over the tariff-review process therefore had to be heard first by the Tribunal.

p. 10
02

Whether a review of water and sewerage tariffs automatically infringes rights under Articles 43(1)(d), 46 and 47

Holding

No; a tariff review is not an automatic infringement and the Petitioners did not prove any difficulty in paying the new tariffs

Reasoning

The Court held that the consequence of a tariff review is increased cost of access, not termination of the service. The Petitioners had a duty to demonstrate how the reviewed costs infringed their right to safe and clean water in adequate quantities, but pleaded and proved no such difficulties. Judicial notice was taken of Eldoret's elevation to city status, making periodic tariff reviews inevitable.

p. 9

Legal principles established

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  • Any person or institution directly affected by a decision of the Water Services Regulatory Board must first present grievances to the Water Tribunal before approaching the High Court/ELC
  • This Court lacks original jurisdiction to evaluate the merits of a tariff review process by the Regulatory Board; its jurisdiction is only appellate under Section 124 of the Water Act

Court orders

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  1. 1.The Amended Petition dated 25.02.2025 is premature and in contravention of Sections 119 and 121 of the Water Act, 2016 and is struck out
  2. 2.The interim orders issued on 25.03.2025 staying Gazette Notice No. 12825 dated 04.10.2024 are discharged
  3. 3.The Petitioners to bear the costs of the Petition as well as the application dated 14.11.2024

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 6, 10, 27, 43, 46, 47, 232
  • Water Act, No. 43 of 2016Sections 3, 63, 70, 72, 77, 78, 92, 105, 119, 121, 124, 139
  • Cap 486establishment of the 1st Respondent as a public company
Jurisdiction invoked
Constitution of Kenya, 2010 (Articles 10, 43, 46, 47) as read with Sections 119, 121 and 124 of the Water Act, No. 43 of 2016

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, "Menjo & another v Eldoret Water & Sanitation Limited & another; Sixty-Four Residents Association, Eldoret (Interested Party) (Environment and Land Petition E009 of 2024) [2025] KEELC 6229 (KLR)", Case Analysis (2025). Amended Petition dated 25.02.2025 (Eldoret ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6229/eng@2025-09-16

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