https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7206

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVILA APPEALLATE DIVISION** **CIVIL APPEAL NO. E1184 OF 2023** **NAIROBI CITY WATER AND SEWARAGE COMPANY LTD……...APPELLANT** **VERSUS** **ZEID SAID ABDUL AHMED……………………………………...RESPONDENT** *(Being an Appeal from the Judgment of Hon. M.W. Murage (SRM) in Milimani CMCC No. 565 of 2019 delivered on 17/12/2022)* **JUDGEMENT** 1. The Respondent in this Appeal sued the Appellant in Milimani CMCC No. 565 of 2019 seeking a sum of Kshs.250,000/- and permanent injunction barring the Appellant from demanding Kshs.2,687,431.99 from the Respondent. 2. The Respondent was also seeking a permanent injunction barring the Appellant from arbitrating billing debiting or rebilling the Respondents watered water through account No. 1824867 and borehole account 18441329 beyond the lawful monthly consumption. 3. The Respondent was also seeking a permanent injunction directed at the Appellant, its agents, employees and any other person acting on it’s name or its behalf from harassing the Respondent in anyway in including but not limited to disconnecting the Respondent’s water supply. 4. The respondent was also general damages and costs of the suit. 5. The Respondent’s case was that the Appellant used to supply the Respondent with mentioned water through account number 1824867 and 18441329. 6. The Appellant used to issue the Respondent with physical invoices but later stopped and were wiring the amount payable via short messages (SMS) 7. The Appellant issued the Respondent with a bill of Kshs.2,637,431.99 claiming it was the sum owing from the Respondent for under billed services on account 1824867 from April 2013 to March, 2018. 8. The Appellant threatened to disconnect the water and eventually disconnected the water and only reconnect it after the Respondent paid a levy of Kshs. 250,000/-. 9. The Appellant filed a defence and counter claim stating that in September 2028.they conducted a data clear up exercise upon which it was established that the Respondent’s account had already been charged for sewerage but not for water consumption. 10. They counter-claimed for Kshs.2,481,749,84 being arrers in relation to account number 1824867. 11. The Respondent called one witness but the Appellant did not call any witness. 12. The trial court found that the Respondent always paid water bills as per what he received through sms. 13. The trial court awarded the Respondent Kshs.226,000/- and general damages of Kshs.800,000/-. 14. The trial court found that the counterclaim was not proved and dismissed it. 15. The Respondent was also granted permanent injunction to stop the Appellant from disconnecting the water supply. 16. The Appellant has appealed against the said judgment on the following ground; 17. ***THAT the learned trial magistrate erred in fact and in law by awarding inordinately high special damages and general damages to the Respondent.*** 18. ***THAT the learned trial magistrate erred in fact and in law by failing to consider the appellant’s counterclaim filed together with the statement of defence.*** 19. ***THAT the learned trial magistrate erred in fact and in law by failing to consider the appellant’s submissions and authorities on quantum hence arriving at an erroneous decision.*** 20. ***THAT the learned trial magistrate erred in fact and in law by awarding damages that were inordinately high to constitute a miscarriage of justice in the circumstances of the case.*** 21. ***THAT the learned trial magistrate’s judgment was wholly not supported in law by evidence tendered in court by the parties.*** 22. The parties filed written submissions as follows; The Appellant submitted that this appeal arises from a judgment delivered on February 17, 2022, by the Chief Magistrate's Court in Milimani CMCC No. 565 of 2019, which ruled in favor of the Respondent, Zeid Said Abdul Ahmed. 23. In that judgment, the court awarded the Respondent K.Shs. 250,000 in special damages and K.Shs. 800,000 in general damages due to a water disconnection, while completely failing to address or determine the Appellant’s filed counterclaim of K.Shs. 2,481,749.84. 24. The Appellant argues that the trial magistrate erred in fact and in law by granting inordinately high damages, disregarding the Appellant's submissions on quantum, and delivering a decision entirely unsupported by the evidence. 25. Consequently, the Appellant is petitioning the High Court to allow the appeal, set aside the trial court's entire judgment, dismiss the permanent injunctions, freshly evaluate the evidence, and grant the full counterclaim amount with costs. 26. The Appellant’s main challenge is lack of jurisdiction. The Appellant submitted that a court's authority strictly flows from the Constitution and legislation, and a must "down its tools" the moment an absence of jurisdiction is identified. 27. The Appellant emphasizes that the main dispute strictly involves the provision of water and sewerage services. 28. Under Sections 82(1), 121(1), and 121(2) of the Water Act 2016, any dispute concerning water resource agreements or business contracts must be heard and determined exclusively by the Water Services Regulatory Board or the specialized Tribunal. 29. The Appellant submitted that because the trial court entertained a matter it had no legislative authority to decide, the Appellant contends that the resulting judgment is void. 30. Furthermore, as a first appeal, the High Court is urged to treat the matter as a retrial, meaning it must independently reconsider and re-evaluate the entire evidence record rather than blindly accepting the subordinate court’s flawed findings. 31. Addressing the merits of the case, the Appellant argues that the trial magistrate wrongly issued a permanent injunction blocking them from billing the Respondent or disconnecting services beyond lawful consumption. 32. Applying the established legal benchmarks for injunctive relief, the Appellant maintains that the Respondent failed to prove a prima facie case with a probability of success. 33. The dispute originated in September 2018 when a data cleanup exercise revealed the Respondent had only been billed for sewerage services and not actual water consumption since 2013. 34. Upon being notified of the back-logged arrears totaling K.Shs. 2,687,431.99, the Respondent formally met with company officials and voluntarily paid a first installment of K.Shs. 226,000 under a mutual agreement to clear the debt. 35. While the Respondent later alleged this payment was coerced, the Appellant highlights that coercion was never formally pleaded under the Civil Procedure Rules, nor did the Respondent present any evidence meeting the legal threshold of a compromised will. 36. Finally, the Appellant notes that failing to establish a prima facie case legally nullifies the need to evaluate secondary injunction hurdles, yet they assert that the Respondent also failed to demonstrate any threat of irreparable injury. 37. Even if the primary water line under account number 1824867 were disconnected for non-payment, the Respondent maintained access to an independent, functional borehole system under meter number 18441329, meaning no severe or uncompensated harm would occur. 38. The Appellant further submitted that because the Appellant is a legally registered entity capable of paying financial damages if necessary, and because it is fundamentally inequitable to force a utility provider to supply continuous services to an defaulting customer, the Appellant concludes that the permanent injunction was completely unwarranted and asks the High Court to overturn the decision. 39. The Respondent submitted that in the initial suit, the customer challenged the water company's actions regarding arbitrary billing, rebilling, and the debiting of two specific water meter accounts between April 2013 and March 2018. 40. The customer asserted that he had consistently paid all raised physical and SMS invoices, payments which the water company never disputed. 41. However, in September 2018, the water company issued an unexpected bill of Kshs 2,687,431 on one of the accounts. 42. Despite the customer providing payment receipts to rectify the issue, the water company maintained its demand, issued a disconnection order, and allegedly coerced the customer, leading him to seek injunctive relief and damages in the lower court. 43. The trial court ultimately ruled in the customer's favor, awarding him a refund of unfairly charged amounts, injunctive orders, and Kshs 800,000 in general damages, bringing the total decretal amount with costs and interest to over Kshs 1 million. 44. The water company subsequently moved to the High Court to set aside this lower court judgment. 45. In response to the appeal, the customer argues that two primary issues stand for determination: whether the lower court lacked the jurisdiction to entertain the suit, and whether the trial court judgment should be set aside. 46. On the issue of jurisdiction, the customer contends that the water company never raised any jurisdictional objections during the trial and instead fully defended the suit to its conclusion, thereby implicitly submitting to the court's authority. 47. Furthermore, the customer argues that while the Water Act regulates water resources and sewerage management, it does not provide a mechanism for resolving disputes stemming from the illegal acts of a water provider against its individual customers. 48. To ground this argument legally, the customer cites established case law demonstrating that a water service provider's decision to disconnect a customer does not constitute an action emanating from a water services board that would fall under the statutory jurisdiction of the Water Appeals Board. 49. The Respondent submitted that because the suit fundamentally concerned injunctive relief against an illegal disconnection and a refund of overcharged fees, it fell properly within the civil jurisdiction of the magistrate's court. 50. The customer emphasizes that the trial magistrate correctly applied the necessary legal thresholds for granting injunctive orders and general damages, and therefore requests the High Court to uphold the lower court's jurisdiction. 51. Regarding the second issue, the customer asserts that the High Court should not set aside the lower court's judgment because it was a fair and just dispensation of justice based strictly on the evidence and pleadings presented by both parties. 52. The learned magistrate afforded both sides an equal and fair opportunity to argue their respective cases. 53. The customer reiterates that the water company's retroactive billing was unlawful, particularly since the customer had always been a dutiful payer and the water company never contested the authenticity of its own invoices or the receipt of those payments. 54. Although the water company attempts to defend its actions on appeal by claiming the billing discrepancy arose from a mistake regarding sewerage rather than water services, the customer argues that such an internal administrative error should not be visited upon an innocent consumer. 55. Invoking principles of appellate review, the customer notes that while a first appellate court has a duty to re-evaluate and re-analyse the evidence on record, it must also recognize that the trial court observed the witnesses directly and that parties remain bound by their original pleadings. 56. The Respondent further submitted that because the customer successfully proved his case on a balance of probabilities in the trial court, and because the water company failed to dispute the requested damages at trial or actively communicate its alleged billing mistake, the customer concludes that setting aside the judgment would cause a grave miscarriage of justice. 57. Consequently, the customer prays that the High Court dismisses the water company's appeal in its entirety with costs. 58. The issues for determination are in this appeal are as follows; 59. ***Whether the trial court had the requisite jurisdiction to entertain the Respondent's suit; and*** 60. ***Whether the trial court's judgment on the merits, particularly regarding the award of damages and the dismissal of the counterclaim, was justified.*** 61. On the issue of jurisdiction, this Court must first establish whether the Magistrate's Court had the legal authority to hear and determine a dispute of this nature. 62. The Appellant has raised a fundamental objection, arguing that the dispute regarding water billing and disconnection falls exclusively under the Water Act, 2016, and ought to have been lodged with the Water Services Regulatory Board and the Water Appeals Tribunal. 63. The law is well-settled that jurisdiction is everything and a court of law cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law, 64. Where a dispute concerns a business contract for water services or a grievance against a water provider's decision, the initial jurisdiction lies with the internal resolution mechanism of the provider, then the Water Services Regulatory Board, and subsequently the Water Appeals Tribunal, before moving to the Environment and Land Court. 65. However, the Respondent argues that he never raised a jurisdictional objection at the trial stage and that the suit primarily concerned illegal disconnection and coercive billing, which are tortious acts falling within the civil jurisdiction of the Magistrate's Court. 66. This Court has reviewed the plaint in Milimani CMCC No. 565 of 2019. The core of the Respondent’s claim is a challenge to a back-dated bill of Kshs. 2,687,431.99 issued in September 2018 for a period spanning April 2013 to March 2018, and the subsequent disconnection of his water supply. 67. While the Respondent frames these as illegal acts, the genesis of the dispute is the interpretation of the water supply contract and the calculation of consumption. 68. Section 121(2) of the Water Act, 2016 is explicit in granting the Tribunal power to "hear and determine any dispute concerning water resources or water services where there is a business contract". 69. This Court finds that the dispute regarding whether the Respondent was underbilled is fundamentally a "water services" dispute governed by statute. 70. Consequently, the Magistrate’s Court lacked the original jurisdiction to entertain this matter. 71. The fact that the Appellant did not raise a Preliminary Objection at the trial level does not operate to clothe the court with jurisdiction, as jurisdiction is conferred by law and cannot be conferred by the consent or acquiescence of the parties. 72. Regarding the merits of the appeal, having found that the trial court acted without jurisdiction, the proper course of action is to strike out the proceedings. 73. The Respondent's argument that the Water Act does not provide a mechanism for "illegal acts" is therefore not tenable, as the Tribunal has jurisdiction to determine the legality of billing practices and disconnections based on the terms of the business contract and the Act. 74. Regarding the Appellant's counterclaim for Kshs. 2,481,749.84, this Court notes that the trial court dismissed it for lack of proof. 75. However, because the principal suit was filed in a court without jurisdiction, the counterclaim, being incidental to the main suit, cannot stand on its own. 76. The proper forum for the Appellant to pursue its claim for arrears is the same statutory dispute resolution mechanism outlined in the Water Act. 77. This Court finds that the trial magistrate erred by failing to first interrogate the question of jurisdiction before delving into the merits of the claim, the award of Kshs. 226,000.00 in special damages and Kshs. 800,000.00 in general damages, and the grant of a permanent injunction. 78. Consequently, the entire judgment delivered on 17th December 2022 is a nullity. 79. In the final analysis, the appeal is hereby allowed. The judgment in Milimani CMCC No. 565 of 2019 is hereby set aside. 80. Consequently, the Respondent’s suit is struck out for lack of jurisdiction. Each party shall bear its own costs of this appeal. 81. Orders to issue accordingly. **Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 25th day of May, 2026.** **………….…………….** 1. **N. ONGERI** **JUDGE** **In the presence of:** Miss Mutimba for the Appellant Miss Ndunga for the Respondent Ubah – Court Assistant