[2019] KEELC 1395 (KLR)

[2019] KEELC 1395 (KLR)

The court found that the 1st defendant, Export Processing Zones Authority, was lawfully appointed as a water undertaker under the repealed Water Act and continued to own and operate the trunk sewer line and treatment plant, as there was no formal transfer of these assets to the 3rd defendant as required by the Water Act, 2002 and the 2005 Rules. The 3rd defendant and its agent, the 2nd defendant, could not lawfully claim management or collection rights over the trunk sewer line without such transfer or a formal agreement. The 1st, 7th, and 8th plaintiffs had entered into binding agreements with the 1st defendant to pay monthly charges for use of the trunk sewer line, and their failure to...

Citation
[2019] KEELC 1395 (KLR)
Parties
Plaintiff: Kapa Oil Refineries Limited; Plaintiff: Nation Media Group Limited; Plaintiff: Sanpac Africa Limited; Plaintiff: Allpack Industries Limited; Plaintiff: Orbit Chemicals Limited; Plaintiff: Mabati Rolling Mills Limited; Plaintiff: Doshi Enterprises Limited; Plaintiff: Decent Developers Limited; Defendant: Export Processing Zones Authority; Defendant: Mavoko Water and Sewerage Company Limited; Defendant: Tanathi Water Services Board
Court
Environment and Land Court
Court Station
Environment and Land Court at Machakos
Jurisdiction
Kenya
Judgment Date
4 October 2019
Case Number
Environment & Land Case 35 of 2010
Procedural Posture
Environment and Land Case / Judgment
Outcome
Plaintiffs' suit dismissed; 1st defendant's counter-claim allowed in part.
Judges
OA Angote
Legal Topics
Public Utilities Management, Water and Sanitation Services, Statutory Mandates, Infrastructure Transfer, Licensing of Service Providers, Contractual Liability
Source Language
English
Land and Property Administrative Law Civil Procedure Public Utilities Management Water and Sanitation Services Statutory Mandates Infrastructure Transfer Licensing of Service Providers +1 more

Case Brief

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Parties

Kapa Oil Refineries Limited

Plaintiff

Nation Media Group Limited

Plaintiff

Sanpac Africa Limited

Plaintiff

Allpack Industries Limited

Plaintiff

Orbit Chemicals Limited

Plaintiff

Mabati Rolling Mills Limited

Plaintiff

Doshi Enterprises Limited

Plaintiff

Decent Developers Limited

Plaintiff

Export Processing Zones Authority

Defendant

Mavoko Water and Sewerage Company Limited

Defendant

Tanathi Water Services Board

Defendant

Procedural Posture

Environment and Land Case / Judgment

Legal Issues

  1. 1 Who is legally entitled to operate and collect charges for the trunk sewer line and treatment plant serving the plaintiffs' industries.
  2. 2 Whether the 1st, 7th, and 8th plaintiffs are contractually liable to pay the 1st defendant for sewerage services.
  3. 3 Whether the 2nd and 3rd defendants lawfully acquired the right to manage the trunk sewer line and treatment plant from the 1st defendant.

Ratio Decidendi

The court found that the 1st defendant, Export Processing Zones Authority, was lawfully appointed as a water undertaker under the repealed Water Act and continued to own and operate the trunk sewer line and treatment plant, as there was no formal transfer of these assets to the 3rd defendant as required by the Water Act, 2002 and the 2005 Rules. The 3rd defendant and its agent, the 2nd defendant, could not lawfully claim management or collection rights over the trunk sewer line without such transfer or a formal agreement. The 1st, 7th, and 8th plaintiffs had entered into binding agreements with the 1st defendant to pay monthly charges for use of the trunk sewer line, and their failure to...

Court Disposition

Plaintiffs' suit dismissed; 1st defendant's counter-claim allowed in part.

Orders

  • The 1st, 7th, and 8th plaintiffs to pay the 1st defendant Kshs. 11,664,000 as at March 2019, being outstanding contractual charges.
  • The 1st, 7th, and 8th plaintiffs to pay the 1st defendant Kshs. 60,000, 24,000, and 24,000 per month respectively from April 2019 until payment in full.