Gitere Kahura Investment Ltd v Water Resources Management Authority & another

MILIMANI ELC JR E025 OF 2026 c) Declaration that the Respondents' failure to act on patently illegal irrational, and water in abstraction breach of Notice is 47 unlawful, of the Constitution. 2. The application is supported by the grounds of the face of the application and in a supporting affidavit of Davide Gitere Wakangu, as director of the ex parte applicant, based on a resolution of the ex parte Applicant's board of Directors attached as annexure marked DGW-(1), said to be the registered owner of LR No. 5960/64. 3. The deponent states that sometime in November 2025, the Interested Party expressed interest in leasing an acre out of its suit land, to which it was issued a letter of offer dated 13.11.2025. 4. Later on, the ex parte applicant deposes that it learned that the Interested Party had engaged unknown individuals to drill a borehole in the leased land, yet no prior consents were sought from them to have a borehole drilled on the leased land. 5. The deponent Director states that on 6.1.2025, he, on behalf of the ex parte Applicant, wrote the letters annexed as DGW Page 2 of 21

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MILIMANI ELC JR E025 OF 2026 (2) to Respondent requiring it to conduct a site visit, inspect, investigate and take action on the legality of the borehole as there had been no prior consent from them sought and obtained and that they doubted whether the Interested Party had the relevant permit or approval from the Respondent. 6. It is deposed by the ex parte Applicant's Director that the Respondent refused to act on the complainant, from which it issued a notice to sue dated 27.3.2025 annexed as DW (3). 7. Despite the notice, the ex parte Applicant’s Director deposes that the Respondent has exacerbated the illegality through failure to act and/or enforce a clearly statutory prohibition and allowed an unlawful water abstraction to persist, which depict but only inaction but also irrationality. 8. The ex parte Applicant Director deposes that failure to act on the complaint amounts to procedural impropriety which can only be cured by allowing the relief herein. 9. The ex parte Applicant pleads that it has a legitimate expectation that the Respondent would enforce the law and protect regulated Water Resources; otherwise, it is the circumstances it is in the interest of justice to be granted the reliefs. Page 3 of 21

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MILIMANI ELC JR E025 OF 2026 10. On 7.7.2026 the respondent and the Interested Parties were granted 14 days to file their responses to the Application and the court further directed that submissions be filed by the 26.7.2026 11. The court notes that at the time of writing its ruling, the respondent and the interested Party have not complied with its directions. 12. The issues calling for my determination are: (i) Whether the ex parte Applicant has defined its capacity to sue. (ii)Whether the ex parte Applicant has exhausted the alternative dispute resolution before court. (iii) Whether jurisdiction to the court has hear and determine the matter (iv) Whether the ex parte Applicant determines the reliefs sought. (v) What is the order as to costs? 13. The appellate jurisdiction of this court to handle disputes concerning Water Resources or water services is provided under Section 124 of the Water Act, Section 9 of the Fair Page 4 of 21

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MILIMANI ELC JR E025 OF 2026 Administrative Actions Act 2016, provided that a person aggrieved by unreasonable administrative an delay, administrative apply action for action may, judicial review upon which without of any original j u r i s d i c t i o n i s conferred pursuant to section Article 22(3) o f the Constitution. 14. Subsection 2 of rule (9) of the Act provides that the High Court should not review an administrative action or decision under the Act unless the mechanism, including an internal mechanism for an appeal or review and all remedies available under any other written law are first exhausted. 15. Sub rule (3) provides that a court may divert for such exhaustion. It is only in exceptional circumstances and on application by an Applicant under sub rule (4) that the court may exempt an Applicant from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice. 16. Jurisdiction is everything; without it, a court of law downs its tools, as was held in Owners of Motor Vessel Lillian “S” versus Caltex Oil (K) Ltd (1989 KECA) 48 KLR.In Sammy Ndunga Waity vs IEBC and others (2019) eKLR, the court Page 5 of 21

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MILIMANI ELC JR E025 OF 2026 said that where a constitution or law consciously confers jurisdiction to resolve a dispute on an organ other than a court of law, it is imperative that such dispute resolution mechanism be exhausted before approaching the courts. 17. The court affirmed Geoffrey Muthenje Kabira and others vs Sammy Muuga Henry and others (2015) eKLR: that the court ought to be the forum of last resort and not the first port of (a) the moments a storm brews. The court said that the exhaustion doctrine serves the purpose of ensuring that there is postponement of judicial consideration of matters to ensure that a party is first of all vigilant in protection of his own interest within the mechanism in place for resolution outside the court. 18. In CCK & others vs Royal Media Services and 2 others (2014 KESC S3 KLR, the court entertained the doctrine of constitutional avoidance is that the court should refrain from constitutional adjudication where there is an alternative legal pathway. 19. In Dr Magare GiKenyi J Benjamin vs Hon Ag & others petition E042 of 2014, the court cited Albert Chaurembo Mumba & others vs Maurice Muusya & Page 6 of 21

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MILIMANI ELC JR E025 OF 2026 others (2019) KESC 83(KLR) that the doctrine of exhaustion is not to be taken as a blanket bar to prevent litigants from pursuing constitutional petitions where alternative statutory procedures are inadequate The court affirmed Chaurembo case (supra) that where there exists an alternative method of dispute resolution established by the constitution or statute the court must exercise restraint and give deference to the dispute resolution bodies established by statute unles unable to deal with such specific dispute in the first instance. See also Adega & others vs Kobos Distillers Ltd & others (2020) KESC 36 KLR, 20. In the Dr Gikenyi case (supra), the court held that the Chaurembo case, also the Adega & others case (supra), must be read together with Nicholas Abidha vs A G & others; National Environmental Complaints Committee &others (2023)KESC 113 (KLR) where the court clarified that the doctrine of exhaustion is not to be applied as a blanket principle for the right to access the court for the enforcement of alleged constitutional violation should not be impended or stifled in a manner that frustrates the Page 7 of 21

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MILIMANI ELC JR E025 OF 2026 enforcement of fundamental rights & freedoms. 21. Similarly, the court further held that the availability of an alternative remedy does not necessarily bar an applicant from seeking constitutional relief, which is contingent upon the adequacy of an existing alternative means of redress. 22. The court went on to say that the court has to scrutinise the purpose for which a party is seeking relief, as well as the efficiency and specificity that the established alternative dispute resolution mechanism has. 23. The court emphasised the need to adopt a nuanced approach based on the case-to-case assessment and the adequacy of the alternative forum, as was held in Bia Tosha Distributors Ltd vs Kenya Breweries Ltd & 2 others (2023) KESC 14 KLR. 24. The Water Act seeks to regulate the management and development of water resources in line with the Constitution. It establishes the Water Resources Authority (WRA) with powers to enforce and regulate water use and management, receive and issue water permits for water abstraction, collect water permit fees/charges and conduct audits. Page 8 of 21

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MILIMANI ELC JR E025 OF 2026 25. The Water Resources Authority, under section 13 of the Act, has powers to inter alia monitor compliance by water users. 26. Section 40 of the Act provides that an application for a water permit has to comply wth EMCA as regards seeking and obtaining an environmental impact assessment as a condition precedent. 27. Any person seeking a water permit should be the subject of public consultation. Under section 40 Rule (5) of the Act, any person opposed to the grant of a permit may object in writing to the Water Tribunal within a period of thirty days after publication of the notice of application. 28. Section 40 (6) of the Act provides that the Authority must, within 30 days, notify the Applicant and the objector of the decision and offer reasons for the rejection of any application. 29. Section 40 (7) of the Act says that when an application made is not determined by the Authority, any fee paid shall be refunded to the applicant. Page 9 of 21

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MILIMANI ELC JR E025 OF 2026 30. Section 43 of the Act relates to considerations in the issuance of a permit, among them the likely effect of the proposed water use on the existing Water Resource and on other water users. 31. Section 45 of the Act relates to a water permit linked to land or undertaking in relation to public interest or with adverse effect on the rights of others. 32. Under section 55 of the Act, any person aggrieved by the decision of the Authority may appeal to the water tribunal in the prescribed manner within 14 days from the date of such decision. 33. Section 119 of the Act establishes the water tribunal. Its jurisdiction under Section 121 of the Act is to hear and determine appeals at the instance of a person or institution of the same by a person directly affected by the decision or order of the Cabinet Secretary, the Authority and the Regulatory Board or any person acting under the Authority of the C.S., the Authority and the Regulatory Board. 34. Under Section 121 of the Act, the tribunal in addition has powers to hear and determine any dispute concerning Water Resources or water services where there is a business contract unless the parties have otherwise agreed to an Page 10 of 21

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MILIMANI ELC JR E025 OF 2026 alternative dispute resolution mechanism. 35. Any person aggrieved by any tribunal may, within 21 days from the date of the decision, appeal to the ELC Court only on an issue of law. 36. In Kisumu WATER & Sanitation Co. Ltd vs Touche (2023) eKLR and in Augustine Michael Murandi & others vs Oloitotok Water & Sanitation Co. Ltd (2017) eKLR, the court said the water tribunal had the jurisdiction to hear the matter. See also Wanimn vs Muvanga Water Service (2025) 14206 (KLR). Page 11 of 21

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MILIMANI ELC JR E025 OF 2026 37. In Republic vs Othaya Mukurweni Water Services Company(OMWASCO) Ltd & 2 Others;Kariuki (Suing on his own behalf and on behalf of OMWASCO water Customers & Consumers) ( Exparte) ELC JR E002 of 2025 (2026) KEELC 2846 KLR (30th April,2026) (ruling), an objection had been raised under Section 82 & 121 of the Water Act on jurisdiction and for lack of nonexhaustion of alternative remedies regarding a dispute on tariff reviews, including public participation and fair Page 12 of 21

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MILIMANI ELC JR E025 OF 2026 administrative action. The court cited that approval speaker of the National Assembly vs James Ngugi Karuma (1992) eKLR that Order 53 of the Civil Procedure Rules cannot oust clear constitutional law statutory provisions where there is a clear procedure for redress of any particular grievance presented by the Constitution or an Act of Parliament. 38. The Court said that the Tribunal has a gazetted chairman vide Gazette Notice No. 8504 of 24th June 2025; hence, it was functional. The Court affirmed that it is only after the Tribunal has acted that a party can appeal on an issue of law before the ELC Court Orders, under Section 124 of the Act. 39. Applying the foregoing case law, my reading of the dispute before this court is that the applicant learned in November 2025 that the Interested Party who it alleges, without consent, either encroached on or entered the suit land and drilled a borehole without its board resolution, written Page 13 of 21

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MILIMANI ELC JR E025 OF 2026 consent, or requisite statutory approvals, thereby constituting trespass, unlawful interference with law and statutory violation of the Water Act. The dispute, in my view, is against the statutory bodies charged with the oversight, regulatory, and management responsibilities under the Water Act. 40. The first port of call by the aggrieved party for any administrative action, omission or breach was the Water Authority, and if it failed to act one way or the other, the ex parte Applicant would have escalated the same to the Water Tribunal. The ex parte applicant, in law, should have exhausted the available alternative dispute mechanisms before resorting to court. The Applicant did not seek leave of court or demonstrate any exceptional circumstance before resorting to court. Therefore, the proceedings before this court offend the doctrine of exhaustion. 41. Coming to the relief sought, mandamus is a command issued by a court requiring an inferior tribunal to do some particular thing therein specified, like public duty. In KNEC GGN & Others ex parte Gathenji versus Rep (1997) KECA 58 KLR, the Court said that the writ seeks to remedy the Page 14 of 21

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MILIMANI ELC JR E025 OF 2026 defects of justice where a specified legal right with no specific legal remedy is unavailable, for enforcing that right. The court said that it may issue even where there is an alternative legal remedy, yet the mode of redress is less convenient, beneficial and effectual. 42. In R (Regina vs Dundshealth ex parte Meredith (1950) 2 ALLER 741, the court said that mandamus will be granted if the duty is in the nature of a public duty which affects the right of an individual, provided there is no more appropriate remedy. The court said that it may refuse the remedy if there exists an alternative one. 43. In Muciimi Mbaka & Co. Advocate vs Town Clerk, City Council of Nairobi (2012) eKLR, the court said mandamus seeks to compel the performance of a public duty imposed by a state, where there has been a failure to perform the said duty to the detriment of an aggrieved party. 44. Prohibition, on the other hand, is a writ that seeks to stop an inferior tribunal from proceeding with an issue or matter that does not fall within its jurisdiction or where the inferior tribunal's actions are in excess of its jurisdiction, as Page 15 of 21

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MILIMANI ELC JR E025 OF 2026 held in Rex vs. Electricity Commissioners, ex parte London Electricity joint committee Co. (1920) Ltd. (1924) 1 KB 171 page 205. 45. The power of Judicial Review, as held in Minerva Mills Ltd vs Union of India (1980)decided by the Supreme Court of India on 31st July 1980, reported as AIR 1980 SC 1789; (1981) 1SCR 2006; (1980) 3 S.C.C 625 as cited in Wycliffe Khisa Lusaka Vs Independent Electoral & Boundary Commission (2017) petition No. 291 of 2017, is an integral part of a constitutional system without which there will be no government of laws and the rule of law would become a teasing illusion and a promise of unreality. 46. Article 165(6) of the Constitution grants the High Court supervisory powers over inferior tribunals. Supervisory jurisdiction was held in the Wycliffe Khija case (supra) and includes checking the lawfulness of a decision or action or failure to act by a public body exercising a public duty or undertaking a public function. It is only available where there are no other effective means of challenge. 47. Judicial review concerns whether the law has been Page 16 of 21

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MILIMANI ELC JR E025 OF 2026 effectively applied or the right procedures were followed. 48. A claimant such as the Applicant has to demonstrate that the Respondent owed it a legal duty to act or make a decision in a certain way and is unlawfully refusing or failing to do so. 49. Granting of the orders of judicial review is also discretionary in nature. The court has to take into account the nature of the process against which judicial review is sought and satisfy itself that there are reasonable grounds or basis to justify issuance of the orders sought. 50. Prohibition, for instance, as held in Kenya National Examination Council vs Republic ex parte Geoffrey Gathenji Njoroge & 9 O t h e r s (1997) eKLR Civil Appeal No. 266 of 1996 , Court of Appeal at Nairobi decided on 21st March 1997 looks to the future. It cannot quash a decision which has already been made. It can only prevent the making of a contemplated decision. Mandamus cannot command the duty in question to be carried out in a particular way; only certiorari can quash a decision already made with or without jurisdiction or one which was made in Page 17 of 21

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MILIMANI ELC JR E025 OF 2026 excess of jurisdiction or where there was non- compliance with rules of natural justice. 51. The ex parte Applicant has not applied for a writ of certiorari, yet it is apparent from the demand letters dated 6.1.2026 that the borehole had been drilled by the time the demand letters were written. 52. Court may refuse to issue writs of Judicial review where a party fails to exhaust alternative remedies available, as was held in Republic vs NEMA (2011) eKLR and in Rep vs Commissioner of Law Ex parte Lake Flowers Ltd NRB HC Misc Appeal No. 1235 of 1998 and in Rep, 1995 DC 835. 53. The ex parte applicant has sued the Respondent instead of taking the dispute to the Water Tribunal. It has not been shown that the Tribunal was not efficacious, lacked capacity or could not have granted the reliefs sought. As was held in Ex parte Chundasama vs the Chief Magistrate Court NRB &another (2008) 2 E. A 311, the remedies of Judicial Review seek to uphold, protect and defend the rule of law by supervising the acts of government powers and authorities that affect the rights or duties or liberties of any person. Page 18 of 21

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MILIMANI ELC JR E025 OF 2026 54. In this case, the ex parte Applicant, as the affected person, has not explained why it did not resort to the Water Tribunal before rushing to court to invalidate the issuance of the E.I.A. report, for instance, to stop the drilling of the borehole, the issuance of a water permit or the commissioning of the borehole to start water abstraction. 55. Of profound importance, and which was a fatal omission, is for the ex parte Applicant to share with the court the lease agreement it holds with the Interested Party, which would have shed light on the terms, including whether the lease, in so far as land use or uses were covered and perhaps the requisite consents or development which the lease could undertake in the leased premises. 56. Proving the breach of Article 47 of the Constitution is what the ex parte applicant has failed to do in terms of showing that the decision or failure to act by the Respondent did not meet the constitutional test of expeditious, efficient, lawful, effective and fair. 57. The ex parte Applicant failed to seek enforcement of the rule of law before the Water Tribunal within the timelines set out. The ex parte applicant has not supplied the court with copies Page 19 of 21

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MILIMANI ELC JR E025 OF 2026 of the water permits, licenses and approvals, if any. The ex parte Applicant, under Article 35 of the Constitution and the Access to Information Act, would have obtained those official reports and documents to enable the court to scrutinize and find fault on the part of the Respondent and the Interested Party. 58. It is the Tribunal Act that has original jurisdiction to issue stop orders. The same applies to NET if the Interested Party was the project proponent operating a borehole without an E.I.A license or report. 59. The ex parte Applicant has also not shown the court through evidence how proximate the borehole is and its impact, if any, on other water sources, to demonstrate the overall effect to other land users in the vicinity. Court may therefore refuse mandamus and injunction, unless it is shown that there are clear legal rights based on relevant consideration and material facts. 60. From the foregoing, the Court finds the Applicant has not proved the claim to the extent required to be entitled to the reliefs sought; the motion dated 13.5.2026 is dismissed Page 20 of 21

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MILIMANI ELC JR E025 OF 2026 with no orders as to costs. 61. Orders accordingly. DATED, SIGNED AND DELIVERED THIS 16TH SEPTEMBER 2026 Via Microsoft Teams. ……………………………. HON. JUSTICE C.K NZILI JUDGE In the presence of: 1. Ngigi for the Applicant 2. Court Assistant: Julius Page 21 of 21

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