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ELCStruck OutE.L.C Appeal No. E002 of 2025· [2026] KEELC 6235 (KLR)

Waterman Drilling Limited v Daniel Kariuki Mbugua

Environment and Land Court of Kenya
1 October 2026
LWL. N. Waithaka
4,361 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a borehole contract appeal, ruling that breach-of-contract disputes belong in the High Court, not the ELC.

What this practically means

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Executive summary

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The respondent sued the appellant in Nyahururu CMC ELC Case No. E031 of 2022 for breach of a borehole drilling contract, seeking general damages, special damages of Kshs. 27,000, a refund of Kshs. 1,305,000, or alternatively completion of the borehole at a pro-rata cost of Kshs. 1,195,233 with a refund of the balance. On 9th December 2025 the trial court (Hon S.O Mogute SRM) entered judgment for the respondent, ordering removal of the obstacle and casing to full depth or, alternatively, refund of the deposit, awarding Kshs. 27,000 as expert costs, interest, and declining general damages. The appellant filed the present appeal together with a notice of motion seeking stay of execution. The respondent raised a preliminary objection contending that the dispute was an ordinary civil/commercial contract dispute outside the ELC's jurisdiction, the proper appellate forum being the High Court. The appellant relied on Article 162(2)(b) and Section 13 of the Environment and Land Court Act, arguing the dispute concerned land use and natural resources, and cited Co-operative Bank v Kang'ethe Njuguna. The court, applying the dominant/predominant issue test as articulated in Suzanne Butler, Lydia Nyambura Mbugua, Mbaluka and other authorities, held that although the drilling occurred on land and involved water extraction, the core dispute was breach of contract, with remedies of specific performance or refund, and did not touch on land use, title or environmental protection. The ELC therefore lacked jurisdiction. The preliminary objection was upheld, the appeal and the stay application were struck out, with costs to the respondent.

Key legal issues

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Whether the ELC has appellate jurisdiction over a dispute founded on breach of a borehole drilling contract

Holding

The ELC lacks jurisdiction; the predominant issue is breach of contract, not use of land, title or environmental protection

Reasoning

The court reviewed the pleadings and applied the predominant/dominant issue test. Although the drilling activity occurred on land and involved extraction of water (a natural resource), the gravamen of the dispute was breach of contractual obligations, with remedies of specific performance or refund of consideration. Such a dispute does not fall within Article 162(2)(b) or Section 13 of the Environment and Land Court Act, and the proper forum is the High Court exercising ordinary civil jurisdiction.

p. 25

Legal principles established

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  • Jurisdiction is a threshold issue that must be determined first; without it a court cannot take any step in the proceedings
  • A contract for the drilling of a borehole, though performed on land and involving extraction of water, gives rise to an ordinary civil/commercial dispute for breach of contract, not an environment and land dispute; the ELC lacks jurisdiction over such an appeal

Court orders

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  1. 1.The preliminary objection by the respondent is upheld
  2. 2.The appeal is struck out
  3. 3.The accompanying notice of motion dated 18th December 2025 seeking stay of execution is struck out
  4. 4.Costs of the appeal and application awarded to the respondent
On appeal from
Chief Magistrate's Court at Nyahururu (ELC jurisdiction)
Nyahururu CMC ELC Case No. E031 of 2022
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (appellate jurisdiction over subordinate courts in environment and land matters)

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, "Waterman Drilling Limited v Daniel Kariuki Mbugua", Case Analysis (2026). E.L.C Appeal No. E002 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6235/eng@2026-10-01

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