[2024] WAT 1196 (KLR)

Coldstone Investment Limited v Nairobi City Water and Sewerage Company Ltd & another (Tribunal Case E002 of 2023) [2024] WAT 1196 (KLR) (1 March 2024) (Ruling)

Neutral citation: [2024] WAT 1196 (KLR)

Republic of Kenya

In the Water Appeals Tribunal

Tribunal Case E002 of 2023

B Ochoi, Chair

March 1, 2024

Between

Coldstone Investment Limited

Applicant

and

Nairobi City Water and Sewerage Company Ltd

1st Respondent

Khaleej Towers Limited

2nd Respondent

Ruling

Background 1. Before the tribunal is a Notice of Motion Application dated 10th November 2023. The applicationis brought under the provisions of Order 51 Rule1,3 and 4 and Order 50 Rule 6 of the Civil procedure Rules, 2010, Cap 21 Laws of Kenya, The Water Act No.8 of 2002 and all enabling provisions of the Law.

2. The applicant seeks the following orders;a.Spent.b.That the Honourable tribunal be pleased to enlarge the time and grant leave to theappellant/applicant to file the Appeal herein.c.That the 2nd respondent by itself. Its agents, servants, proxies and or employees berestrained by way of an injunction from trespassing upon the Appellant/Applicant’s property known as Land Reference number 36/VII/235 in the Eastleigh area of Nairobi county and constructing any sewerage collection or inspection chamber, any un-procedural sewerage connection and any un-procedural sewerage infrastructural upgrades thereupon or in any other way trespassing ,alienating, constructing entering and interfering with the Appellant/Applicants quiet possession of the said property Land Reference number 36/VII/235 or any portion thereof pending the hearing and determination of the instant application and the Appeal herein.d.That the 2nd respondent by itself, its agents, servants, proxies and or employees berestrained by way of an injunction from constructing any sewerage connection outside its own boundary known as Land Reference Number 36/VII/234, to the 1st respondent’s existing sewer line which runs through the Appellant’s property, Land Reference number 36/VII/235 and or discharge any sewerage waste into the said existing sewer line or the Appellant /Applicant’s property pending the hearing and final determination of the instant application and the Appeal herein.e.That the 1st respondent by itself, its agents, servants, proxies and or employees berestrained by way of an injunction from authorizing, permitting abetting, allowing or otherwise consenting to the construction of any illegal sewerage infrastructure upon the Appellant/Applicant’s property, Land Reference number 36/VII/235 by the 2nd respondent, pending the hearing and final determination of the instant application and the Appeal herein.f.That the costs of this application be provided for.

3. The application is based on eleven grounds set out on the face of the application and supported byan affidavit sworn on 10th November 2023 by Daniel Waihenya Theuri a Director of the Applicant company.

4. This matter came up for hearing Exparte in the first instance the tribunal did not grant anyinterim orders but asked the applicant to serve the application for inter-parties hearing . Upon service, the 1st respondent filed a replying affidavit sworn by Manasses Yada Omala in opposition to the application while the 2nd respondent filed statement of grounds of objection and a supporting affidavit to the ground sworn by Abdikadir Omar Hassan.

5. When the application was ready for hearing the parties agreed that the same could be canvassedby way of written submissions. On 9/2/2024, the parties confirmed that their submissions had been filed and the application was reserved for ruling.

The Applicant’s Contention. 6. The Applicant contends that he is the lawful owner of Land reference number 36/VII/235 in Eastleigh area while the 2nd respondent is the owner of the adjacent parcel L.R number 36/VII/234 . He contends that the 2nd respondent has constructed a 20 Storey building against an official approval of 14 Storey building in his parcel of land and that in flagrant disregard of the building code, By laws 1968 and physical planning Rules Handbook 2007, the 2nd respondent has erected the said building from beacon to beacon on its property without allowing the mandatory recess from the boundary bordering and separating its property from the Appellant /Applicants property and further without providing the space required for sewerage waste management connection and requisite inspection chamber within the boundaries of its’s property.

7. The applicant contends that in the absence of any recess or provision in its property, the 2ndrespondent has without the authority and consent of the Appellant and further in flagrant disregard of the Appellant’s property rights, demolished a portion of the applicant’s boundary wall and trespassed upon the applicant’s property.

8. The applicant further contends that the 2nd respondent has also attempted to establish andconstruct an irregular and illegal sewerage collection chamber and sewerage connection in an effort to gain access to an old existing sewer line belonging to the 1st respondent which runs through the Applicant’s property vide an easement granted by the Appellant to the 1st respondent. The said old sewer line according to the Applicant running through the applicant’s property has no capacity to handle waste water flow from the 20 storey building.

9. The applicant contends that it has submitted multiple complaints against the 2nd respondent’sunlawful activities to the 1st respondent , but the 1st respondent inexplicably failed ,refused and /or neglected to take any corrective action , despite the evidence provided by the applicant.

10. The applicant contends that the actions of the 2nd respondent of trespassing and attempting toconstruct an illegal sewerage collection chamber and sewerage connection on L.R number 36/VII/235 is unlawful and blatant breach of the applicant’s rights over its property and the said action greatly prejudices the applicants interests over its property and unless the tribunal grants the orders sought the applicant will suffer irreparable loss and damage.

Respondent’s Responses. 1st Respondent’s Contention 11. The 1st respondent through an affidavit sworn by MT-Civil Engineer one Manasses Yadaobjected to the application and contended that following the complaints by the applicant the 1st respondent conducted a site visit investigation and the findings were sent to the Applicant through a letter dated 26/4/2023 by the managing Director of the 1st respondent explaining to the applicant the findings of the site visit,

12. The 1st respondent contends that way back in the 1980’s the Government invoked the provisionsof the way Leave Act and established a sewer line which cut across parcels number 36/VII/234 and 36/VII/235 and many properties along the sewer line up to the Ruai treatment plant. It contends that the sewer line is a public utility meant for the public good and available for all land owners, that the sewer line is meant to serve all and sundry without discrimination.

13. The 1st respondent contends that the it utilizes the way leaves crossed by the sewer line to carryout repairs and periodic maintenance for the public good and to avert a situation wherein there can be a blockage and spillage that could cause environmental disaster. The 1st respondent contends that its known by the company that the 2nd respondent has connected to the sewer line by creating a manhole on top of the sewer line which is one of the methods that property owners can use to connect to the main sewer line and is the most feasible for the 2nd respondent considering the type nature of building he has constructed in his plot.

14. The 1st respondent further contends that the existence of the sewer line predates the applicantspurchase and ownership of the property and that the sewer line use has accrued through long usage and passage of time by way of prescription and that the appellant was a an equal user and beneficiary of the sewer line and it was quite unfair for it to seek to deny its neighbours equal rights and access of the use of the same when its own usage of the same facility necessitates passage of waste through other property along which the sewer line runs on the same property.

15. The 1st respondent contends that the contentions relating to the construction by the 2ndrespondent from beacon to beacon on its plot falls outside the mandate of the 1st respondent and outside the jurisdiction of his tribunal.

The 2ND Respondent’s Response and Contention 16. The 2nd respondent through an affidavit sworn on 27TH November 2023 contend that beforethey embarked on the construction in the plot they made an application for development as mandated in the Physical and Lands use planning Regulations 2019 and an approval was received before proceeding and that the said approval clearly indicated the location of the building in relation to the beacons of the property.

17. The 2nd respondent also contends that they applied to the 1st respondent with regard to sewerconnection to serve the building they were constructing and they received the necessary approvals from the 1st respondent to connect pipes to the 1st respondents sewer lines but surprisingly after connecting their pipes, the applicant and its agents maliciously destroyed the pipes twice and the matter was reported at Eastleigh police station and some of the applicants agents have been charged in court at makadara with the offence of malicious damage to property.

18. The 2nd respondent contends that they did a letter to the 1st respondent on the issue and the 1strespondent replied and confirmed to them that the location of the manhole serving their property was a sewer line running between parcel number 36/VII/235 and parcel number 36/VII/234 contrary to the allegations by the applicant that the 2nd respondent was encroaching into the applicant’s property. It also contends that the 1st respondent confirmed that the sewer line had the capacity to accommodate the properties within the approval granted and the argument by the applicant on the issue of capacity was baseless.

19. The 2nd respondent contends that it was not the place of the applicant to direct where the 2ndrespondent should put the sewage connection and that they were in full compliance with the law.

20. The 2nd respondent contends that the appellant has not satisfied the three principles forgranting an injunction, that the applicant is seeking a remedy in equity and yet it has failed, refused and or neglected to do equity, that the applicant has not come to court with clean hands and the application is brought in malice and bad faith and thus should be dismissed.

Issues For Dertermination 21. The Appellant /Applicant identified one issue for determination i.e whether the Applicant hasestablished the conditions set out in the case of Giella Vs Cassman Brown 1973 (E.A) 358 namely;a.Whether the applicant has a primafacie case with a probability of successb.Prove that the applicant is likely to suffer irreparable loss if the orders are not grantedc.Show that the balance of convenience tilts in his favour.

22. The 1st respondent did not mention the issues for determination while the 2nd respondent identified the following issues;a.Whether or not the tribunal has jurisdiction to handle this matterb.Whether or not the Appellant /Applicant has met the threshold for issuance of injunctionsc.Whether or not the manhole constructed by the 1st respondent on the Appellants property is awayleaved.Whether or not the 2nd respondent trespassed by connecting a sewer pipe to the 1st respondent’smanholee.Whether or not the Appellant /Applicant has exhausted all available remedies before Appeal.

23. Having considered the submissions by all the parties and upon perusal of the pleadings herein i will frame the issues for determination as follows.a.Whether the Water Tribunal has Jurisdiction to deal with this matterb.Whether the threshold for grant of an injunction have been met.

Analysis And Determination Whether the Tribunal has Jurisdiction to deal with this matter 24. The 2nd respondent submits that the Appeal herein is encircled on determining the existence ofa wayleave and trespass into the Appellant/Applicant’s property which does not fall within the scope and jurisdiction of the Honorable tribunal. It submits that the Tribunals jurisdiction as set out in section 121 of the Water Act does not include any of the prayers sought by the Appellant/applicant. The 2nd respondent submits that the focus of the Appellant is that the manhole is on it’s property and by connecting the sewerage pipes to the manhole the 2nd respondent has trespassed and this goes beyond the scope of the tribunal.

25. The jurisdiction of the Water Tribunal is set out under Section 121 of the Water Act 2016 asfollows;1. The Tribunal shall exercise the powers and functions set out in this Act and in particular shallhear 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 anddetermine any dispute concerning water resources or water services where there is a business contract, unless the parties have otherwise agreed to an alternative dispute resolution mechanism.

26. From the pleadings in this matter the Appellant declares in paragraph 2 of the Notice of Appeal that the decision appealed from is the refusal by the 1st respondent to stop the 2nd respondent from encroaching and trespassing upon the Appellants property, building an illegal and unauthorized sewerage collection chamber and manhole (inspection chamber) upon the Appellants property and creating an illegal unorthodox and unauthorized sewerage connection upon the Appellants property.The Appellant seeks the following final prayers inter alia;a.A declaration do issue that the easement granted by the appellant to the 1st respondent allowing access for the 1st respondents sewer line through Land Reference Number 36/VII/235 is an “easement” as defined in the Land Act and the Water Act, that preserves the Appellants property interest over the area under easement and not a public wayleave as alleged by the 1st respondent. b. A further declaration do issue that the 2nd respondent’s attempted construction of a sewer collection chamber and a sewer connection line on the property known as Land Reference Number 36/VII/235 is illegal and unlawful trespass and violation of the Appellant’s private property.b.An order issue against the 2nd respondent, its agents and servants jointly and /or severallycompelling it to demolish forthwith the illegal sewer connection and sewerage collection chamber that the 2nd respondent has attempted to construct upon the Appellant’s property.c.A permanent injunction do issue to restrain the 1st respondent, its agents and servants jointly andseverally from authorizing, abetting, allowing or otherwise consenting to the construction of any illegal sewerage infrastructure upon the Appellants property by the 2nd respondentd.A permanent injunction do issue to restrain the 2nd respondent, its agents and servants jointlyand severally from constructing any other sewerage infrastructural upgrades upon the Appellants property.

27. It is observed that the Appellant did not respond to issue of Jurisdiction despite being servedwith the submissions by the 2nd respondent which raised the issue of Jurisdiction. This was a serious omission as the issue has the potential of disposing off the entire case if the Tribunal finds that indeed it has no Jurisdiction. The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 where Justice Nyarangi of the Court of Appeal held as follows;'I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.'

28. Justice Nzioki Wa Makau in Seven Seas Technologies Limited v Eric Chege [2014] eKLR stated that the authority for the above holding by the learned Judge of Appeal is to be found in the writings of John Beecroft Saunders in a treatise which is no longer published headed Words and Phrases Legally defined – Volume 3: I – N and it states at page 113 the following about jurisdiction: -“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.

29. The first prayer by the Appellant is the declaration that the easement granted by the Appellant tothe 1st respondent allowing access for the 1st respondents sewer line through its land is an easement as defined under the land Act and water Act. According to Megarry and Wade (2008) ,The Law of property ,London, Sweet and Maxwell, 7th Edition an easement is defined as “………….an overriding interest in land a common law creature that grants one right to enjoy another person’s land including right of way, right of light right of water profits among others………………”. A dispute concerning easements in my view squarely falls under the jurisdiction of the Environment and land court and not this Tribunal which deals with disputes concerning water resources or water services where there is a business contract. A easement is clearly not a business contract and cannot be subject of the Tribunal.

30. Prayer “b” in the Appeal seeks a declaration that the appellant’s actions are illegal and unlawfultrespass and violation of the Appellants private property. Once again looking at the mandate of the Water tribunal , it lacks the jurisdiction to make such declarations, the tribunal also lacks the jurisdiction to order the demolitions and removal of the so called illegal sewer connections on account of trespass . In short the cause of action in this matter falls outside the mandate of the tribunal and the same lacks the jurisdiction to grant any of the orders sought by the appellant.

31. In the case of Owners and Masters of the Motor Vessel ‘Joey” versus Steve B [2007] eKLR theHigh Court of Kenya held;“The question of jurisdiction is a threshold issue and must be determined by a judge at the threshold stage, using such evidence as may be placed before him by the parties. It is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs (sic) tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.

32. Having found that this court has no jurisdiction to determine the issues raised by the Appellantand guided by the authorities cited above i find that it would be an academic exercise to continue to consider and determine issue number 2 of the issues for determination.

Conclusion 33. This courts finds merit in the second respondents’ submissions that the Tribunal has no Jurisdiction to hear the matter. In this regard, the Appellants Notice of Appeal dated 10th November 2023, together with the Notice of Motion of even date be and are hereby dismissed with costs to the 1st, 2nd Respondents.

SIGNED AND DELIVERED AT NAIROBI THIS 1ST DAY OF MARCH 2024HON B.M OCHOICHAIRMANSIGNED BY: HON.BERNARD OCHOITHE JUDICIARY OF KENYA.WATER TRIBUNALTRIBUNALDATE: 2024-03-01 15:23:17+03The Judiciary of Kenya