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MagistrateDismissedNot stated in the judgment· [2024] KEMC 98 (KLR)

Riungu v Ndambithe (Chairman Kibacha Water Project) & another (Environment & Land Case 7 of 2021) [2024] KEMC 98 (KLR)

Chief Magistrate's Court (Githongo Law Courts)
28 June 2024
TST.A. Sitati
1,048 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan magistrate's court threw out a water disconnection suit, ruling that water disputes belong before the Water Tribunal, not ordinary courts.

What this practically means

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Executive summary

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The plaintiff, by a plaint dated 12th February 2021, sought a mandatory injunction compelling the defendant to reconnect water to the plaintiff's property L.R. No. Abothuguchi/L-Kaongo/870, plus costs, alleging unlawful disconnection of water. The plaint was supported by a witness statement and a lease agreement, demand notice and project by-laws. The defendant opposed by a statement of defence dated 29th January 2024, supported by witness statements of Gikunda Ndambithe and Charles Nthurima and documents including by-laws, a letter of 29th October 2020 and a receipt of 27th February 2021. The defendant also filed a preliminary objection contending that the dispute fell within the province of the Water Regulatory Authority, and ultimately the Water Tribunal, under sections 119 and 121 of the Water Act, 2016. The court identified a single issue: whether it had jurisdiction to entertain the suit. Relying on Owners of Motor Vessel Lilian 'S' v Caltex Oil (K) Ltd, the court reaffirmed that jurisdiction is everything and that a jurisdictional challenge must be decided immediately on the material available. Noting that the dispute concerned access to and utilization of water resources within the meaning of the Water Act, 2016, the court held that jurisdiction fell squarely upon the Water Tribunal and that the trial court therefore lacked jurisdiction. The preliminary objection was upheld, the suit was dismissed as filed in the wrong forum, costs were awarded to the defendants, and a right of appeal of 30 days was granted on 28th June 2024.

Key legal issues

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Whether the magistrate's court had jurisdiction over a dispute concerning access to and utilization of water resources under the Water Act, 2016

Holding

The court lacked jurisdiction; the dispute fell squarely within the jurisdiction of the Water Tribunal under sections 119 and 121 of the Water Act, 2016, and the preliminary objection was upheld

Reasoning

Applying Owners of Motor Vessel Lilian 'S', the court held that jurisdiction must be determined as soon as raised. Sections 119 and 121 of the Water Act, 2016 vest jurisdiction over disputes concerning water resources and water services in the Water Tribunal, including disputes arising from business contracts. The dispute before the court concerned access to and utilization of water resources, so the suit was filed in the wrong forum and had to be dismissed.

p. 3

Legal principles established

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  • A question of jurisdiction, once raised, must be decided forthwith on the material before the court, and a court without jurisdiction must down tools immediately
  • Where the jurisdiction of a tribunal depends on the existence of a particular state of facts, the court must inquire into those facts to decide whether it has jurisdiction

Court orders

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  1. 1.Preliminary objection upheld as merited
  2. 2.Suit dismissed as having been filed in the wrong forum
  3. 3.Costs awarded to the defendants
  4. 4.Right of appeal granted as 30 days
Jurisdiction invoked
Sections 119 and 121 of the Water Act, 2016 conferring jurisdiction over water disputes on the Water Tribunal; the magistrate's court held it lacked jurisdiction

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, "Riungu v Ndambithe (Chairman Kibacha Water Project) & another (Environment & Land Case 7 of 2021) [2024] KEMC 98 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/98/eng@2024-06-28

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