Magasol Services Limited v Nairobi City Water & Sewerage Company & 3 Others

disregard of the express provisions of sections 119(1),121(2) and 124 of the Water Act Cap 372. 2. The objection was canvassed by way of submissions. In support of the preliminary objection, the 1 st and 2nd Defendants filed written submissions dated 11 th June, 2026. Counsel submitted that the issue of jurisdiction is a threshold question which must be determined at the earliest opportunity, as a court lacking jurisdiction has no power to entertain proceedings. 3. Reliance was placed on the celebrated decision of Owners of the Motor Vessel “Lilian S” vs Caltex Oil (Kenya) Ltd (Civil Appeal No. 50 of 1989) [1989] KECA 48 (KLR), wherein Nyarangi, JA held that jurisdiction is everything and that once a court finds it lacks jurisdiction, it must immediately down its tools. 4. It was urged that in the present case, the Plaintiff/Applicant, as the beneficial owner of the suit properties, is supplied with water and sewer services by the 1 st Defendant/Respondent. Counsel submitted that the dispute arose from alleged outstanding water and sewer charges, which led to the disruption of services, and that the outstanding balance continued to increase due to nonpayment and the Respondent's inability to access the water meter. It was therefore contended that the dispute concerns the provision of water and sewer services to the suit ELC EP NO. E016 OF 2026 RULING 2

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properties, matters falling within the jurisdiction of the Water Tribunal. 5. On the issue of costs, counsel submitted that the law is settled that costs follow the event. Reliance was placed on Orix Oil (Kenya) Limited vs Paul Kabeu & 2 Others [2014] eKLR, where the court observed that a successful party is ordinarily entitled to costs unless there are exceptional circumstances warranting a departure from that general rule. Counsel submitted that no such exceptional circumstance had been demonstrated in the present matter and consequently urged the court to uphold the preliminary objection and award the costs thereof to the 1 st and 2nd Defendants. 6. The Plaintiff was granted 7 days to file submissions from the 6th July, 2026. No submissions were on record as at 30 th July, 2026. 7. Having considered the pleadings, the issues that arise for determination are whether the preliminary objection is competent and if so, merited? 8. The law with respect to preliminary objections is now well settled. Law JA in Mukisa Biscuits Manufacturing Co. Ltd. vs. West End Distributors (1969) EA 696 at 700 stated that: “…a ‘preliminary objection’ consists of a point of law which has been pleaded, or which arises by ELC EP NO. E016 OF 2026 RULING 3

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clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 9. Newbold, P further held: “A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing butt unnecessarily increases costs and, on occasion, confuse the issues. This improper practice should stop.” 10. The Supreme Court in the case of Hassan Ali Joho & Another vs Suleiman Said Shahbal & 2 Others [2014] eKLR re-affirmed the principles as set out in the Mukisa Case(supra) stating: “A preliminary objection consists of a point of law which has been pleaded or which arises by clear ELC EP NO. E016 OF 2026 RULING 4

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implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 11. It is apparent from the foregoing that a preliminary objection should raise pure points of law, argued on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained from elsewhere or if the court is called upon to exercise judicial discretion. Further, it should be capable of disposing off the suit. 12. The present objection is founded on the alleged breach of the doctrine of exhaustion. This is a principle that requires courts to refrain from entertaining matters which can be properly resolved through an existing statutory framework. In Speaker of the National Assembly vs Njenga Karume [2008] 1 KLR 425, the court held that where there exists a ELC EP NO. E016 OF 2026 RULING 5

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clear procedure for redress under statute, that procedure ought to be followed. The Court of Appeal restated this principle in Geoffrey Muthinja Kabiru & 2 others vs Samuel Munga Henry & 1756 others [2015] eKLR, thus: “It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.” 13. An inquiry in this regard does not call for the resolution of contested facts or the exercise of discretion, but rather entails a legal evaluation of the forum invoked vis-à-vis the forum prescribed by statute. This has been properly brought. 14. Turning to the merits of the objection, the Defendants contend that this court lacks jurisdiction by virtue of Sections 119, 121 and 124 of the Water Act, 2016. Their argument is that the dispute falls within the exclusive jurisdiction of the Water Tribunal and that the Plaintiff ought ELC EP NO. E016 OF 2026 RULING 6

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to have first invoked that statutory dispute resolution mechanism before approaching this court. 15. Section 119 of the Water Act establishes the Water Tribunal, while Section 121 speaks to its jurisdiction. It provides thus: “121. Jurisdiction of the Tribunal (1)The Tribunal shall exercise the powers and functions set out in this Act and in particular shall hear and determine appeals at the instance of any person or institution directly affected by the decision or order of the Cabinet Secretary, the Authority and Regulatory Board or of any person acting under the authority of the Cabinet Secretary, the Authority and Regulatory Board. (2)In addition to the powers set out in subsection (1), the Tribunal shall have the power to hear and determine any dispute concerning water resources or water services where there is a business contract, unless the otherwise agreed to alternative an parties have dispute resolution mechanism.” 16. Section 124, in turn, grants a right of appeal from the Tribunal to the Environment and Land Court on points of law. The rationale underpinning these provisions is to ensure that disputes falling within the specialized statutory mandate of ELC EP NO. E016 OF 2026 RULING 7

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the Water Tribunal are, in the first instance, determined by that expert body before recourse is had to this court. Consequently, where a dispute concerns a regulatory decision under the Water Act or a contractual dispute relating to water services, the doctrine of exhaustion ordinarily requires parties to first pursue the remedies established under the Act. 17. By way of brief background, the Plaintiff seeks, inter alia, permanent injunctive orders restraining the 1st Defendant from trespassing onto its property and issuing arbitrary and unjustified water bills, a mandatory injunction compelling the 1st Defendant to repair the manhole cover and sewerage system and reinstate the borehole water connection and related infrastructure, damages for trespass, destruction of property, violation of its constitutional rights, together with other consequential reliefs. 18. The Plaintiff's case is that it maintained a contractual relationship with the 1st Defendant as a consumer of water and sewerage services in respect of the all those properties known as L.R. No. 12602/869 and Plot No. 299 which it owns. The parcels have approximately 46 residential units thereon. It avers that, with the approval of the Water Resources Management Authority (now the Water Resources Authority), it constructed a borehole and sewer system to serve the premises. ELC EP NO. E016 OF 2026 RULING 8

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19. According to the Plaintiff, sometime in September, 2022, the 1st Defendant unlawfully disconnected its water supply forcing it to rely on the approved borehole as an alternative source. Thereafter, it, through its officials, unlawfully entered the suit premises, destroyed and interfered with the borehole and sewer infrastructure, disconnected the water meter without notice or lawful cause, damaged the entrance and water connection infrastructure using heavy machinery, and demolished sections of the sewer system. 20. The Plaintiff further alleges that the 1 st Defendant dumped raw human waste within and outside the premises, causing a public health hazard and rendering the properties partially uninhabitable, all in the presence and with the facilitation of police officers despite the absence of any court order. 21. It further contends that, notwithstanding the disconnection, the 1st Defendant continued to levy arbitrary and disputed water bills and threatened further disconnection of sewer services on account of alleged arrears. The Plaintiff maintains that these actions were undertaken without due process or fair administrative action, were intended to coerce payment of disputed charges, exposed its forty-six households to health risks, threatened the loss of rental income, and violated its constitutional rights to property, fair administrative action, and a clean and healthy environment. ELC EP NO. E016 OF 2026 RULING 9

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22. The court has considered the same. To begin with, it is evident that the dispute arose in the context of the parties' contractual relationship for the provision of water and sewer services. It would ordinarily fall under Section 121(2) of the Water Act being a dispute concerning water resources or water services where there is a business contract. However, the Plaintiff's cause of action is not confined to questions of billing, outstanding charges, or the disconnection of services. 23. It also involves allegations of trespass, unlawful entry onto private property, destruction of borehole and sewer infrastructure, malicious damage to property, dumping of raw sewage, interference with proprietary rights, and alleged violations of the Plaintiff's constitutional rights. These are matters that extend beyond the specialized jurisdiction conferred upon the Water Tribunal under Section 121 of the Water Act. 24. Equally, the remedies sought, including permanent and mandatory injunctions, damages for trespass and destruction of property, constitutional reliefs, and compensation are not merely incidental to a dispute over water services, but are substantive claims falling within the jurisdiction of this court. 25. The court finds further guidance in this regard from the Court of Appeal decision in Augustin Michael Mulandi & 2 Others vs Nol Turesh Water and Sanitation Co. Limited [2020] KECA 63 (KLR), where the court held that the High ELC EP NO. E016 OF 2026 RULING 10

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Court erred in declining jurisdiction merely because the dispute arose from a contractual relationship governed by the Water Act. 26. The Court of Appeal observed that, although the Water Tribunal is vested with jurisdiction to determine disputes concerning water services arising from a business contract, the existence of that statutory mechanism does not oust the court's constitutional jurisdiction where the pleadings disclose alleged violations of constitutional rights. 27. The court emphasized that the appellants had properly invoked the High Court's jurisdiction because, in addition to the contractual dispute, they alleged violations of their constitutional rights arising from the disconnection of water services. 28. Accordingly, the court is not persuaded that the Plaintiff was required to first invoke the jurisdiction of the Water Tribunal before instituting these proceedings. The doctrine of exhaustion is therefore inapplicable in the circumstances of this case. 29. In the end, the court finds the preliminary objection to be unmerited. The same is dismissed with costs. Dated, signed and delivered virtually in Nairobi this 1 st day of October, 2026. ELC EP NO. E016 OF 2026 RULING 11

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O. A. Angote Judge In the presence of; Mr. Waiganjo for 1st Defendant Mr. Kimani for Plaintiff/Applicant Mrs Chepkemei for Wanjiru for 3rd and 4th Defendants Court Assistant: Tracy ELC EP NO. E016 OF 2026 RULING 12

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