[2010] KEHC 861 (KLR)
The court held that the dispute between the parties concerns the decision of the Water Resources Management Authority to permit the Defendant to drill a borehole, which is a matter falling squarely within the jurisdiction of the Water Appeal Board under section 85(1) of the Water Act. The Plaintiff's inability to...
Source-derived case information.
- Citation
- [2010] KEHC 861 (KLR)
- Parties
- Plaintiff: Kenya Polytechnic University College; Defendant: Francis Njuguna Waweru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Election Petition 550 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection and Application for Temporary Injunction
- Outcome
- suit and application struck out for want of jurisdiction
- Legal Topics
- Borehole Permits, Water Rights, Jurisdiction of Courts, Temporary Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kenya Polytechnic University College
Plaintiff
Francis Njuguna Waweru
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Application for Temporary Injunction
Legal Issues
- 1 Whether the High Court has jurisdiction to hear disputes regarding borehole permits and water abstraction under the Water Act.
- 2 Whether the Plaintiff is entitled to a temporary injunction restraining the Defendant from constructing or abstracting water from a borehole.
Ratio Decidendi
The court held that the dispute between the parties concerns the decision of the Water Resources Management Authority to permit the Defendant to drill a borehole, which is a matter falling squarely within the jurisdiction of the Water Appeal Board under section 85(1) of the Water Act. The Plaintiff's inability to access the Water Appeal Board due to the absence of a chairman does not confer jurisdiction on the High Court. Consequently, both the suit and the application for a temporary injunction are incompetent before this court and must be struck out for want of jurisdiction.
Court Disposition
suit and application struck out for want of jurisdiction
Orders
- The suit is struck out with costs to the Defendant.
- The Plaintiff's application for a temporary injunction is struck out.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ELC NO. 550 OF 2009
KENYAPOLYTECHNICUNIVERSITY
COLLEGE ……………………………….PLAINTIFF/APPLICANT
V E R S U S
FRANCIS NJUGUNA WAWERU ….DEFENDANT/RESPONDENT
R U L I N G
The Plaintiff owns land parcel LR. 209/8726 in South B in Nairobi and has drilled a borehole thereon to serve its students hostels. The Plaintiff alleges that the Defendant has recently drilled a borehole on his adjacent land L.R. 209/3598 and that this will interfere with its borehole and will cause it to dry up. It is alleged that the Defendant’s construction of a borehole within a hundred meters of an existing one is illegal and prejudicial. The Plaintiff has complained to the Water Resources Management Authority but without success and says that it cannot go to the Water Appeal Board because its chairman has not been appointed by the Minister.
The Defendant is saying he has drilled a borehole on L.R. 209/3598 but with the permission of the Water Resources Management Authority and therefore that his actions are not illegal. The Defendant then pleaded that this court has no jurisdiction to hear or determine the Plaintiff’s suit which sought a permanent injunction to restrain the construction of the borehole on L.R. No. 209/3598 and/or the abstraction of water from the borehole. The Plaintiff filed a chamber application for a temporary injunction under Order 39 rules 1(a), 2 and 9 of the Civil Procedure Rules. In response, the Defendant raised a preliminary objection to the same on the ground that the dispute belongs to the Water Appeal Board and this court has no jurisdiction to determine it. I listened to Mr. Bundotich for the Defendant and Mr. Misati for the Plaintiff on this issue.
The Defendant says he has a permit from the Water Resources Management Authority to drill a borehole on his land. The Plaintiff is saying the Defendant does not have a permit and/or that it is aggrieved by this subsequent borehole. The Plaintiff is essentially aggrieved by the decision to allow the Defendant to drill his borehole. This is a dispute that can only be properly heard and determined by the Water Appeal Board under section 85 (1) of the Water Act (Act No. 8 of 2002). This court lacks the jurisdiction to hear or decide the dispute. It follows that both the suit and the application are incompetent and are struck out with costs.
DATED AND DELIVERED ATNAIROBI
THIS 27TH DAY OF OCTOBER 2010
A.O. M UCHELULE
J U D G E