Twinstar Education Centre v Nairobi City Water and Sewerage Company

he Defendant’s case and evidence 4. Moreover, the Defendant suered loss of revenue from the Plainti’s actions as other users failed to get normal water supply from April 2017 to April 2023. The Plainti benetted from the sale of water without paying for it and the double connection on the same piece of suit property. The particulars of fraud are listed in the Witness Statements led by dierent ocers of the Defendant and the testimonies given in court. 5. The Defendant called Tom Onduru as its rst witness. He introduced himself as working as an investigating assistant for the Defendant since 20213 and adopted his witness statement dated 29th April 2024. He also produced as exhibits documents contained in the list dated 30th May 2023 led alongside the defence and counter-claim. The witness averred that the Plainti had opened a water account with them in 2016 which account is still active. That another account was opened in the year 2021 in the name of Pauline Musyimi with the same land reference. He added that they lodged a criminal case at the city court but which he could not tell whether it had been concluded or not. 6. Norah Koech testied as DW2 by adopting her witness statement dated 6th July 2023. She stated that the investigating team were able to identify the illegal connections and they sought her technical assistance. That she was able to identify the two accounts in the impugned premises; one in the name of plainti and the second in the name of Pauline Musimi who is the head of school. 7. According to her, the meter number in Paulin’s name ought to have been in a dierent land reference number. DW2 posited that there were also connections done not going through the meter but which were directed to three tanks of 8000 litres each. She assisted the team in removing the illegal connections/pipes. 8. Brigid Njoki Ngare testied as DW3 and she stated that she reviewed the report from the technical committee on the illegalities and calculated the loss suered by the Defendant following the illegal water connections. That she used the taris provided for under the Water Act and gazette notice number 7335 of 2.10.2015. The calculation was for the period April 2017 upto April 2023 minus monies paid by the Plainti. In cross examination by the Court, the witness stated that the Plainti was using 8000 litres per day because they were selling water to the public. This marked the close of the Defendant’s case. 9. Learned counsel for the Defendant led written submissions which I have read and considered. It is submitted for the defendant that this being a liquidated claim which has not been defended, the same ought to be granted as prayed although they have also proved their claim. Analysis and Determination: 10. The claim as pleaded in the counter-claim may appear to be a liquidated claim but it is more of a claim for damages alleged suered/incurred as a result to what is termed as illegal connections by the Plainti. Consequently, it is my considered view that the Defendant had a duty to demonstrate that indeed they suered loss of income in the amount claimed. My role therefore is to assess whether that duty has been discharged. It is pleaded that the Plainti had xed two booster pumps that were causing water shortages in the surrounding area; a violation of section 145 (f) of the Water Act 2016 (henceforth referred to as ‘the Act’) that states that ‘it is illegal to unlawfully interfere with water supply works of the licensee; the Defendant’. 11. It is the Defence claim that their investigation found that the two pumps were siphoning water from two illegal connections that were not metred and which is a criminal oence under section 145 (e) of https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13847/eng@2024-12-11 2

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the Act. There is charge sheet produced as Dex-1 where the name of the accused is given as Antony Kimiyu Musimi in criminal case no. 2555 of 2023. DW1 said he was not aware if this matter had been concluded since they had not received a copy of the judgement. Antony Musimi had sworn an adavit in support of the Plainti’s application that he was a director of the Plainti. 12. The Plainti had initially alleged that the Defendant had acted maliciously, arbitrarily and without any justication when it disconnected the water supply. The Plainti claimed that the Defendant had vandalised and damaged taps and pipes worth Kenya shillings Fifty Thousand [Ksh 50,000/-). This conrms the actions taken by the technical team as stated in the evidence of DW2. The Plainti falied to call evidence to justify their complaint under section 60 (5) of the Act; which states that the Defendant is allowed to carry out reasonable damage in cases of illegal connections; as was the case with the Plainti. 13. The Defendant averred a second account was opened fraudulently in 2021 under the same suit property and which account was registered in the name of Pauline Kalinde Musyimi using a dierent LR number to conceal that there was another account for the same premises. I am not satised that proof was made that only one account number can be operated under one land reference. The documents opening the second account were issued by the Defendant and they did not bring evidence that they were forged. 14. The Defendant also alleged that the Plainti was selling water to water tankers from water collected from the illegal connections but no evidence was led to prove this assertion. However, vide a letter dated 4th April 2023 addressed to the Plainti, an explanation is given on how the amount claimed is arrived at. The said letter read in part thus; “ This is to inform you that the bills for the referenced account (No. 5152376) have been adjusted. The adjustment was done so as to recover consumption for the period from April 2017 to April 2023 when the connection was by passed” (underline mine for emphasis). 15. 16. The Defendant particularised the loss as follows: a. The Defendant had lost water from two illegal connections valued at Kenya shillings Five Million Six Hundred and Fifty-Four Thousand Three Hundred and Ten and Eighty Cents. [Ksh 5,654,310.86/-] calculated according to the gazetted Water Tari. b. Fraud charges for two illegal connections each Kenya shillings One Hundred Thousand [Ksh 100,000/-]; a total of Kenya shillings Two Hundred Thousand [Ksh 200,000/-]; also indicated in the water tari. c. Damages for the removal of the illegal connections which included the Defendant’s excavator deployed at Kenya shillings Fifteen Thousand [Ksh 15,000/-] per hour to excavate the main for an hour fteen minutes at a total cost of Kenya shillings Eighteen Thousand Seven Hundred and Fifty [Ksh 18,750/-]; d. Other reconnections such as pipes and ttings cost Kenya Shillings Two Thousand [Ksh 2,000/-] e. The two booster pumps on the line; each at Kenya shillings Ten Thousand [Ksh 10,000/-]. Concerning interest, section 6 (1) of the Civil Procedure Act states that ‘where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13847/eng@2024-12-11 3

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suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks t.’ 17. I therefore nd that the Defendant’s prayers are merited and allow the counter-claim as presented. DATED, SIGNED AND DELIVERED AT NAIROBI AT THIS 11TH DAY OF DECEMBER, 2024. A. OMOLLO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13847/eng@2024-12-11 4

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