Republic v Othaya Mukurweini Water Services Company (OMWASCO) & 2 others; Kariuki (Suing on His Own Behalf and on Behalf of Omwasco Water Customers and Consumers) (Ex parte) (Environment and Land Judicial Review Case E002 of 2025) [2026] KEELC 2846 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a water tariff judicial review because it was filed three days late and bypassed the Water Act's own complaint process.
What this practically means
#Executive summary
#Key legal issues
#Whether the substantive notice of motion filed three days late is fatally defective
Yes - the 21-day period in Order 53 rule 3 is mandatory, the applicant never sought extension of time, and the objection is upheld
Leave was granted on 10 June 2025 and the motion was due within 21 days but was filed three days late. Citing Republic v Kahindi Nyafula and the AKO v Special District Commissioner line of authority, the court held the statutory period is absolute; Order 50 rule 6 cannot override the Law Reform Act. The applicant chose not to seek extension of time, so Article 159 and the oxygen principle could not rescue the motion.
Whether the application offends the doctrine of exhaustion under the Water Act
Yes - the Water Act provides a comprehensive dispute-resolution framework (Regulatory Board under section 82, Water Tribunal under section 121, appeal to the ELC under section 124) which must be pursued to finality before resorting to the ELC
The court invoked the Karume principle that statutory procedures must be strictly followed. Although the applicant had filed a Water Tribunal case, the Tribunal was then not properly constituted for want of a chairperson; the court noted that the Tribunal is now functional pursuant to Gazette Notice No. 8504 dated 24 June 2025, so the applicant must pursue that forum to finality.
Whether the applicant's complaint route under section 82 of the Water Act breaches natural justice
The applicant argued the section 82 complaint mechanism offended nemo judex in causa sua because the 3rd Respondent was involved in the tariff increase, but the court did not accept this as displacing the statutory forum
The Ex parte Applicant submitted that lodging a complaint with the Regulatory Board against a tariff increase that was a joint venture of all three Respondents would make the Board a judge in its own cause, and relied on exceptions to the exhaustion doctrine in Olaly v Duba. The court nonetheless held that the Water Act mechanism must be pursued.
Legal principles established
#- A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct
- The 21-day period for filing the substantive judicial review motion under Order 53 rule 3 is mandatory and the Law Reform Act does not provide for enlargement of time
- Where a clear procedure for redress of a grievance is prescribed by statute, that procedure must be strictly followed
Court orders
#- 1.The preliminary objections raised by the Respondents on July 22, 2025, and October 21, 2025, are allowed
- 2.The judicial review application dated 25th June 2025 is struck out with costs
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court/Environment and Land Court under Order 53 of the Civil Procedure Rules and the Law Reform Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Othaya Mukurweini Water Services Company (OMWASCO) & 2 others; Kariuki (Suing on His Own Behalf and on Behalf of Omwasco Water Customers and Consumers) (Ex parte) (Environment and Land Judicial Review Case E002 of 2025) [2026] KEELC 2846 (KLR)", Case Analysis (2026). Judicial Review Application, Notice of Motion dated 25th June 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2846/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.