Magasol Services Limited v Nairobi City Water & Sewerage Company & 3 Others
The bottom line
#Kenya's Environment and Land Court ruled that water disputes involving trespass, property damage or constitutional violations can go straight to court without first visiting the Water Tribunal.
What this practically means
#Executive summary
#Key legal issues
#Competence of the preliminary objection
The objection was properly brought as it entailed a legal evaluation of the forum invoked vis-à-vis the forum prescribed by statute, without resolution of contested facts or exercise of discretion.
The court applied the Mukisa Biscuits test: a preliminary objection must be a pure point of law. The exhaustion question required only a legal evaluation of whether the Water Tribunal was the proper forum, not ascertainment of facts, so the objection was competent.
Whether the doctrine of exhaustion under the Water Act required the Plaintiff to first go to the Water Tribunal
The doctrine of exhaustion was inapplicable because the Plaintiff's cause of action and remedies sought extended beyond the Water Tribunal's jurisdiction under Section 121 of the Water Act.
Although the dispute arose from a contractual relationship for water services ordinarily falling under Section 121(2), the suit also involved trespass, destruction of infrastructure, dumping of sewage and constitutional violations, which exceed the Tribunal's mandate. Following Mulandi, statutory mechanisms do not oust constitutional jurisdiction where constitutional violations are pleaded.
Legal principles established
#- A preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised.
- Where a statutory dispute resolution mechanism exists, it must be exhausted before invoking the court's jurisdiction, but the doctrine does not oust the court's constitutional jurisdiction where pleadings disclose violations of constitutional rights.
Court orders
#- 1.The 1st and 2nd Defendants' preliminary objection dated 2nd June, 2026 is dismissed
- 2.Costs of the preliminary objection awarded to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; appeal from the Water Tribunal lies to this court under Section 124 of the Water Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Magasol Services Limited v Nairobi City Water & Sewerage Company & 3 Others", Case Analysis (2026). ELC EPCC E016 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6035/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.