Sikalieh (Suing as the Chairman of Karen Langata District Association) v Kamenwa & 2 others (Environment and Land Petition E066 of 2022) [2026] KEELC 1692 (KLR)
The bottom line
#A Kenyan court ordered water regulators to survey Karen-Langata boreholes and publish the aquifer plan, but claims against a deceased permit holder collapsed.
What this practically means
#Executive summary
#Key legal issues
#Whether the water permit terminated by operation of law on the death of the 1st Respondent and expiry of its term
Yes. The permit was issued to the 1st Respondent personally, no transfer or substitution of the estate was evidenced, and the five-year term ended on 29 June 2024.
The permit on its face was issued to the 1st Respondent in his individual capacity. Section 45(1)(b) allows a permit to pass with a disposition, but no evidence of transfer or succession to another person was presented, nor any application to the 2nd Respondent to transfer it. Independently, the permit's five-year term expired on 29 June 2024, so at the time of judgment no valid permit existed for abstraction on L.R. No 12159/30 in Karen.
Whether liability can be determined against the deceased 1st Respondent who was not substituted
No. The court declined to make findings on the alleged illegalities against him.
The court invoked actio personalis moritur cum persona and section 2 of the Law Reform Act, under which causes of action survive death, but enforcement requires substitution of the estate. Citing Onyango Oloo v Attorney General and Sangram Singh, it held the right to be heard before an adverse decision is fundamental; since the deceased denied the claim before dying and was never substituted, findings against him would breach natural justice.
Whether the 3rd Respondent (WASREB) failed in its statutory duties
No. Its mandate under section 72 of the Water Act is limited to regulating water service providers, and the permit holder was not one.
The impugned permit was issued by the 2nd Respondent, which the 3rd Respondent does not regulate. The permit was for domestic abstraction and did not authorise the holder to operate as a water service provider, so it did not fall within the 3rd Respondent's regulatory class. The Petitioner failed to establish a nexus between the 2nd and 3rd Respondents' roles or to specify the obligation the 3rd Respondent was required to perform and failed to perform.
Whether the 2nd Respondent (WRA) violated Article 69(1) by failing to conserve the aquifer and instead advising commercialisation
Yes, in part. By advising the permit holder to apply for a commercial licence while unable to assess borehole impacts and with the allocation plan incomplete, the 2nd Respondent violated the State's positive obligation under Article 69(1).
The 2nd Respondent admitted in affidavit that it could not determine the impact of a specific borehole on the Nairobi Aquifer, yet upon confirming commercial use it advised the holder to legalise, facilitating greater abstraction. Applying the precautionary principle, it should have limited usage until the Nairobi Aquifer Water Allocation Plan was completed. The unexplained delay of about four years, with no timeline and no assurance that commercial licences would not issue in the interim, violated Article 69(1)(a).
Whether the regulator erred in varying rather than cancelling the breached permit
No. The Water Act gave the 2nd Respondent a discretion to either vary or cancel a permit whose conditions had been breached.
Section 49(1) empowers cancellation subject to notice, while section 46(2) provides for variation. The court found the 2nd Respondent had discretion to exercise either option, so its choice to direct variation rather than cancellation was within the law, even though the variation should have followed section 50 procedure.
Legal principles established
#- A personal water permit does not survive the holder's death where no transfer or substitution is evidenced; an unchallenged permit expires by operation of law at the end of its term.
- A court cannot apportion liability against a deceased party who was not substituted, as that would breach the right to be heard.
- Causes of action survive the death of a party under section 2 of the Law Reform Act (Cap 26), but only through proper substitution of the estate.
- Where a regulator cannot determine the impact of a specific borehole on an aquifer, it must apply the precautionary principle and limit usage until an allocation plan is completed; issuing permits for increased abstraction in the interim violates Article 69(1).
- Where a permit holder breaches permit conditions, the regulator has discretion under sections 46(2), 49(1) and 50 of the Water Act either to vary or to cancel the permit.
Court orders
#- 1.An order of mandamus against the 2nd Respondent compelling it, within six (6) months, to undertake a physical ground survey of all boreholes in the Karengata area in compliance with Regulation 52 of the Water Resources Regulations, 2021, establishing valid authorisations, locations, distances, number, construction details, age, current status and use, current abstraction and use, and to share the report with the Petitioner.
- 2.An order of mandamus against the 2nd Respondent compelling it, within six months from the date of the judgment, to publish on its website or make available in its offices copies of the Nairobi Aquifer Allocation Plan in compliance with Regulation 52(3) of the Water Resources Regulations, 2021.
- 3.Each party to bear their respective costs of the petition.
- Jurisdiction invoked
- Constitutional petition under Articles 42, 43(1)(d) and 69 of the Constitution read with the Water Act, 2016 (article 42 and 43 rights against state agencies)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sikalieh (Suing as the Chairman of Karen Langata District Association) v Kamenwa & 2 others (Environment and Land Petition E066 of 2022) [2026] KEELC 1692 (KLR)", Case Analysis (2026). Petition dated 28.11.2022 (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1692/eng@2026-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.