https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9515

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MAKUENI** **CIVIL CASE NO. E002 OF 2025** **KUTCH KIBWEZI FARM LIMITED………………………………………..…..PLAINTIFF** **-VERSUS-** **WATER RESOURCES AUTHORITY (WRA)……………….….……..…1ST DEFENDANT** **THE COUNTY GOVERNMENT OF MAKUENI……….….………….2ND DEFENDANT** **RULING** 1. In the Plaint dated 05/06/2025, the Plaintiff seeks the following prayers; 2. **A Declaration that the Defendants, jointly and severally, have a constitutional and statutory duty to safeguard the Plaintiff’s right to access clean, safe, and affordable water and to protect water infrastructure from unlawful interference, destruction, or disruption.** 3. **A Permanent Injunction restraining the Defendants, whether by themselves, their servants, agents, or any persons acting under their authority, from trespassing upon, interfering with, or damaging the Plaintiff’s water infrastructure and installations at Kutch Kibwezi Farm in Makueni County, or from disrupting the Plaintiff’s lawful water usage and farming operations.** 4. **A Mandatory Injunction compelling the 1st Defendant to restore and/or allow the restoration of the Plaintiff’s water infrastructure to its original working condition and to process the Plaintiff’s pending water abstraction permit without delay or discrimination.** 5. **A Declaration that the actions and omissions of the Defendants, in trespassing, vandalizing, refusing authorization, and failing to protect water access, were illegal, unlawful, and unconstitutional.** 6. **Costs of this suit be awarded to the Plaintiff.** 7. **Any other or further relief that this Honourable Court may deem** fit and just to grant in the circumstances. 8. The Plaint was accompanied by an application of even date seeking the following orders; 9. **Spent** 10. **THAT an interim injunction be granted restraining the 1st and 2nd Respondents, their agents, employees, officers, servants or any person acting under their instructions or authority, from disconnecting, interfering with, vandalizing or otherwise disrupting the Plaintiff’s water supply and irrigation system connected to River Athi pending the hearing and determination of the substantive appeal;** 11. **THAT an order be issued mandating the immediate restoration and reconnection of the Plaintiff’s water supply and irrigation system to enable resumption of irrigation activities pending the determination of the substantive appeal;** 12. **THAT the Respondents be ordered to comply with the provisions of Article 47 of the Constitution of Kenya, Sections of the Water Act, 2016, and any other applicable laws and regulations, including giving the Plaintiff prior written notice of any enforcement actions, inviting the Plaintiff to a hearing or inquiry before taking any adverse action affecting the Plaintiff’s water abstraction rights;** 13. **THAT costs of this application be awarded to the Plaintiff/Applicant; and** 14. **THAT the Honourable Tribunal grant any other orders it deems fit and just in the circumstances of this case.** 15. The 1st Respondent reacted to the Plaint and application by filing a Preliminary Objection (P.O) dated 28/07/2025 on the ground that this Honourable Court lacks the jurisdiction to entertain the suit as it offends the provisions of **Section 13 of the Environment and Land Court Act, 2011**. 16. The 2nd Defendant also filed a P.O dated 05/02/2026 and grounded as follows; 17. **This Honourable Court lacks jurisdiction to hear and determine this suit by virtue of Sections 119 and 121 of the Water Act, 2016, which vest exclusive original jurisdiction over disputes relating to water resources, water permits, enforcement actions and regulatory decisions in the Water Tribunal.** 18. **The Plaintiff’s grievances arise directly from: Disconnection of water abstraction works; Enforcement actions under the Water Act; and Processing and validity of water abstraction permits, all of which fall squarely within the statutory mandate of the Water Tribunal.** 19. **The alleged non-constitution or temporary vacancy of the Water Tribunal does not confer jurisdiction upon this Honourable Court, jurisdiction being conferred strictly by statute and not by convenience or necessity.** 20. **The suit offends the doctrine of exhaustion of statutory remedies and is therefore premature, incompetent and fatally defective.** 21. When the matter came up to confirm compliance on 18/05/2026, the 2nd Defendant acknowledged that they had not filed submissions with respect to their P.O and stated that they had no intention of participating in the P.O raised by the 1st Defendant. 22. The Plaintiff opposed the P.Os through the following Grounds of Opposition dated, 07/10/2025; 23. **That the Preliminary Objection is misconceived, frivolous, vexatious, and an abuse of the process of this Honourable Court.** 24. **That this Honourable Court is properly seized of jurisdiction under Article 165(3)(a) and (d) of the Constitution of Kenya, 2010, to hear and determine questions relating to the violation of fundamental rights and freedoms, legality of administrative actions, and *ultra vires* conduct of statutory bodies, which are central to this dispute.** 25. **That the jurisdiction of the Environment and Land Court under Section 13 of the Environment and Land Court Act, 2011 does not oust or derogate from the High Court’s constitutional mandate to adjudicate claims involving trespass, vandalism, unlawful administrative action, and infringement of constitutional rights, as pleaded by the Plaintiff.** 26. **That the Plaintiff’s claim is not confined to ownership, use, or occupation of land as alleged by the 1st Defendant, but also raises issues of trespass, destruction of private property, violation of constitutional rights, and statutory breaches by the 1st Defendant and the 2nd Defendant, which fall within the purview of the High Court.** 27. **That the cause of action arises from the illegal, high-handed, and unconstitutional actions of the Defendants, which actions can only be competently interrogated by this Honourable Court.** 28. **That the Preliminary Objection raises contested factual and legal issues, which cannot be determined as a pure point of law, contrary to the principles laid down in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.** 29. **That striking out the suit at this stage will prejudice the Plaintiff by denying it the right to be heard, contrary to Article 50(1) of the Constitution of Kenya, 2010.** 30. **That it is in the interests of justice and in furtherance of the overriding objective under Sections 1A and 1B of the Civil Procedure Act that the suit proceeds to full hearing on its merits.** 31. The P.O by 1st Defendant was canvassed through written submissions. 32. It was submitted that the orders sought in the Plaint fall under the jurisdiction of the Environment and Land Court (ELC). Reliance was placed on the case of **Samuel Kamau Macharia -vs- Kenya Commercial Bank & 2 Others, Civil Appl. No. 2 of 2011** where the court observed that; **“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. …Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.”** 1. Reference was made to **Article 162 (2)** of the **Constitution and the ELC Act** for the submission that the ELC is mandated to deal with disputes relating to environment and the use and occupation of and title to land. It was contended that matters touching on regulation of water use and water abstraction fall under the ELC jurisdiction since it relates to the use of land and the environment. 2. It was submitted that, under **Article 162(2) and Article 165(5)** of the **Constitution** **read together with Section 13 of the ELC Act**, disputes concerning the environment and natural resources, including the regulation of water abstraction, water-use permits, charges and related enforcement by the 1st Defendant, fall within the jurisdiction of the ELC Court. That, the High Court is therefore not the proper forum. 3. It was submitted that the court’s decision in **Itabari & Another vs Water Resources Authority & 3 Others [2025] KEELC 398** demonstrates that disputes concerning water permits, charges and related regulatory action fall within the ELC’s jurisdiction. Further reliance was placed on the case of **Krystalline Salt Ltd -vs- Water Resources Management Authority (Civil Appeal 252 of 2018) [2024] KECA 191.** 4. Reliance was also placed on the case of **Omar Tahir Said -vs- Registrar of Titles & Another [2013] eKLR** where the court stated; **“It follows that the High Court's enforcement jurisdiction does not extend to matters relating to disputes falling under Section 13(2) of the Environment and Land Court Act. That is the preserve of the Environment and Land Court. There is need for this clarity so that litigants know which Court has jurisdiction in respect to which dispute. Perceptions and suspicions of forum shopping would be minimized or eliminated.”** 1. The case of **Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd (1989) KLR** was cited for the submission that jurisdiction is everything and without it, a court has no power to make one more step. Reliance was also placed on the case of **Interim Independent Electoral Commission [2011] eKLR, Constitutional Application No. 2 of 2011** where the Supreme Court stated; **“…a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of Legislation is clear and there is no ambiguity…** **(68). A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.”** 1. The 1st Defendant also relied on the case of **Republic -vs- Karisa Chengo & 2 Others [2017] eKLR** where the Supreme Court stated; **“[50] … Article 162(1) categorises the ELC and ELRC among the superior Courts and it may be inferred, then, that the drafters of the Constitution intended to delineate the roles of ELC and ELRC, for the purpose of achieving specialization, and conferring equality of the status of the High Court and the new category of Courts. Concurring with this view, the learned Judges of the Court of Case in the present matter observed that both the specialized Courts are of “equal rank and none has the jurisdiction to superintend, supervise, direct, shepherd and/or review the mistake, real or perceived, of the other”. Thus, a decision of the ELC or the ELRC cannot be the subject of case to the High Court; and none of these Courts is subject to supervision or direction from another.** **[52] In addition to the above, we note that pursuant to Article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relations Act and respectively outlined the separate jurisdictions of the ELC and the ELRC as stated above. From a reading of the Constitution and these Acts of Parliament, it is clear that a special cadre of Courts, with suis generis jurisdiction, is provided for. We therefore entirely concur with the Court of Case’s decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous Courts and exercise different and distinct jurisdictions. As Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.** **[79] It follows from the above analysis that, although the High Court and the specialized Courts are of the same status, as stated, they are different Courts. It also follows that the Judges appointed to those Courts exercise varying jurisdictions, depending upon the particular Courts to which they were appointed. From a reading of the statutes regulating the specialized Courts, it is a logical inference, in our view, that their jurisdictions are limited to the matters provided for in those statutes. Such an inference is reinforced by and flows from Article 165(5) of the Constitution, which prohibits the High Court from exercising jurisdiction in respect of matters “reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or (b) falling within the jurisdiction of the Courts contemplated in Article 162(2).”** 1. It was submitted that the objection does not qualify as a proper preliminary objection within the settled principles in **Mukisa Biscuit Manufacturing Co. Ltd** **-vs- West End Distributors Ltd (1969) EA 696**. That, a P.O must raise a pure point of law, must proceed on the assumption that all facts pleaded by the opposing party are correct and must not invite the court to interrogate contested facts or engage in evidentiary evaluation. 2. It was submitted that in order to determine whether **Section 13 of the ELC Act** applies, the Court would be required to interrogate disputed factual matters, including whether the Defendants trespassed onto the Plaintiff’s land, whether vandalism of existing water infrastructure occurred, whether the 1st Defendant acted *ultra vires* its statutory mandate and whether the remedies sought are constitutional and administrative in nature. That, these are not abstract questions of law but contested issues requiring evidence and full ventilation at trial. That, on that basis alone, the objection is premature, misconceived, and amounts to an abuse of the court process. 3. It was further submitted that this court is properly seized of the matter by virtue of **Article 165 of the Constitution**. That, **Article 165(3)(a)** confers upon the High Court unlimited original jurisdiction in both criminal and civil matters and **Articles 165(3)(b) and (d)** vest the High Court with jurisdiction to determine questions concerning the interpretation of the Constitution, the violation or threatened violation of fundamental rights and freedoms, the legality and reasonableness of administrative action and whether any public body has acted outside the law. 4. It was further submitted that, the Plaintiff seeks declarations of illegality and unconstitutionality, reliefs akin to judicial review, injunctive orders restraining unlawful administrative conduct and coercive remedies compelling the restoration of vandalized water infrastructure following alleged abuse of statutory power by the 1st Defendant. That, these are remedies that lie at the heart of the High Court’s constitutional mandate. 5. Reliance was placed on the case of **Samuel Kamau Macharia -vs- Kenya Commercial Bank & 2 Others [supra]** for the submission that a court’s jurisdiction flows from the Constitution and cannot be curtailed or conferred by statute in a manner inconsistent with constitutional provisions. That, consequently, no statutory enactment, including the **ELC Act**, can lawfully derogate from or oust the High Court’s express constitutional jurisdiction over claims grounded in constitutional interpretation, administrative justice, and the legality of public power. 6. It was contended that the dispute herein does not fall within the specialized jurisdiction under **Section 13 of the ELC Act**. That, the provision confines the jurisdiction of the ELC to disputes relating to land use, land planning, title, tenure, boundaries, and environmental matters directly tied to land. It was contended that the Plaintiff’s claim does not concern ownership, title, occupation, or use of land but revolves around allegations of trespass and vandalism of existing water infrastructure, abuse of statutory power by the Water Resources Authority, unlawful administrative action, failure to lawfully process a water permit and violations of constitutional rights protected under **Articles 40, 42, 47, and 21 of the** **Constitution**. That, these grievances cannot be reduced to a conventional land dispute. 7. Reliance was made on the case of **Suzanne Butler & Another -vs- Redhill Investments Ltd [2016] eKLR** for the submission that; not every dispute touching on land must necessarily be filed before the ELC. That, courts are enjoined to interrogate the real substance of the dispute rather than its superficial connection to land. That, in the present case, the gravamen of the suit is the alleged unlawful and unconstitutional conduct of the 1st Defendant as a statutory body, not the regulation or adjudication of land use. 8. It was further contended that even if an assumption is made that land is somehow implicated, the presence of constitutional and administrative law questions preserves the High Court’s jurisdiction. Reliance was placed on the case of **Republic -vs- National Land Commission *ex-parte* Cecilia Chepkoech Leting & 3 Others [2016] eKLR** for the submission that where a dispute transcends pure land issues and implicates the legality of administrative action, the High Court retains jurisdiction. 9. Reliance was also placed on **Mohamed Ali Baadi & Others -vs- Attorney General & 11 Others [2018] eKLR** for the submission that the High Court remains the primary forum for enforcement of constitutional rights, even where land forms part of the factual background. 10. Counsel opined that environmental and land statutes cannot be invoked to shield statutory bodies from constitutional oversight. That, **Articles 165(6) and** **(7)** **of the Constitution** expressly vest the High Court with supervisory jurisdiction over Subordinate Courts and quasi-judicial bodies, including statutory authorities such as the Water Resources Authority. That, the 1st Defendant cannot therefore avoid judicial scrutiny of its actions by a bare invocation of the **ELC Act.** 11. Without prejudice to the foregoing, it was submitted that if this Honourable Court were to find that the dispute properly falls within the jurisdiction of the ELC, the appropriate course would be transfer rather than dismissal. Reliance was placed on the Supreme Court decision in **Law Society of Kenya -vs- Judicial Service Commission & Attorney General, Reference No. 21 of 2014,** for the submission that where a matter is filed in a court lacking jurisdiction but another competent court exists, transfer of the suit better promotes access to justice as guaranteed under **Article 48 of the Constitution**. 12. Having looked at the P.O and the rival submissions, the only issue for determination is whether the P.O is merited. 13. The *locus classicus* case in determination of a preliminary objection is the case of **Mukisa Biscuit Manufacturing Ltd -vs- West End Distributors (supra)** which posits that a P.O must be a pure point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose off the suit. 14. The P.O in this case is that this court lacks jurisdiction as the matters raised in the suit are reserved for the Environment & Land Court. 15. From the pleadings filed in court, the Plaintiff acknowledged jurisdiction of the Water Tribunal over the matter but averred that it was unable to file the matter in the said tribunal as it was not constituted following the end of the Chairman’s term. **Section 121 of the Water Act, Cap 372 Laws of Kenya** (the Act) provides; **“(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. (emphasis mine).** **(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 parties have otherwise agreed to an alternative dispute resolution mechanism.”** 1. The Authority referred to in **Section 121 (1)** is the **Water Resources Authority** which is the 1st Defendant herein. The Plaintiff’s grievance as can be discerned from the Plaint is that; as an agribusiness company which relies on water from River Athi, the disconnection of water done by the Respondents has caused its crops to dry up and resulted in immense economic loss and devastation. It is therefore evident that the Plaintiff’s grievance is predominantly centered on the decision allegedly made by the 1st Defendant to disconnect the water in its farm. It is therefore factual that the Water Tribunal has jurisdiction in the matter. 2. **Section 124 of the Act** provides that; **‘a person aggrieved by a decision of the Tribunal may, within twenty-one days from the date of that decision, appeal to the Land and Environmental Court, established under article 162(2) of the Constitution on an issue of law.’** By parity of reasoning therefore, the suit herein should have been filed at the ELC if the argument is that the Water Tribunal had not been constituted at the time the cause of action arose. 3. The ELC is established under **Article 162** **of the Constitution** to hear and determine disputes relating to; ‘the environment and the use and occupation of, and title to land’. 4. **Section 13 of the ELC Act, Cap 8D Laws of Kenya** provides as follows; **“(1) The court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with article 162(2)(b) of the** [**Constitution**](https://new.kenyalaw.org/akn/ke/act/2010/constitution) **and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.** **(2) In exercise of its jurisdiction under article 162(2)(b) of the** [**Constitution**](https://new.kenyalaw.org/akn/ke/act/2010/constitution)**, the court shall have power to hear and determine disputes—** **(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;** **(b)relating to compulsory acquisition of land;** **(c)relating to land administration and management;** **(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and** **(e)any other dispute relating to environment and land.”** 1. Now that the ELC is primarily concerned with issues of land, the term ‘land’ is defined by **Article 260 of the Constitution** to include; a) The surface of the earth and the subsurface rock; b) Any body of water on or under the surface; (emphasis mine) c) Marine waters in the territorial sea and exclusive economic zone; d) Natural resources completely contained on or under the surface; and e) The air space above the surface.” 1. Consequently, it is evident that the issues raised in the suit fall within the exclusive jurisdiction of the ELC. 2. Be that as it may, I am aware that the Chairperson of the Water Tribunal, one Dr. Maxwel Owuor Miyawa, was sworn in on 01/07/2025 hence the Tribunal is now properly constituted. Under the doctrine of exhaustion, the relevant water body in this case the water tribunal now operational ought to deliberate on the issues at hand and if not satisfied move on appeal to the ELC Court. Consequently, the P.O. herein is upheld and the suit herein struck out for lack of jurisdiction with no order as to costs. Dated, signed and delivered virtually this **30th** day of **June 2026** ..................................................... J.N.ONYIEGO **JUDGE**