https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10326

Thuku & 5 others v Nakuru Water and Sanitation Services Company (NAWASCO) & 4 others (Petition E058 of 2025) [2026] KEHC 10326 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10326 (KLR) Republic of Kenya In the High Court at Nakuru Petition E058 of 2025 JK Sergon, J July 9, 2026 In The Matter Of: Articles 1, 2, 3(1), 10(2)(a)(b), 19, 20, 21, 22, 23, 35, 42, 43, 46, 47, 174, 176, 186, 191 And The Fourth Schedule Of The Constitution Of Kenya, 2010 And In The Matter Of: Rules 11, 12, 13, 20 And 21 Of The Constitution Of Kenya (protection Of Rights And Fundamental Freedoms) Practice And Procedure Rules, 2013 And In The Matter Of: Sections 4, 5 And 6 Of The Fair Administrative Action Act, No. 4 Of 2015 And In The Matter Of: Sections 5 And 6 Of The County Government Act, No. 17 Of 2012 And In The Matter Of: The Water Act, 2016 And In The Matter Of: Alleged Contravention And/or Threatened Violation Of Articles 10, 35, 42, 43, 46, And 47 Of The Constitution Of Kenya And In The Matter Of: The Actions And Conduct Of The Nakuru Water And Sanitation Services Company (nawasco) And The Nakuru Rural Water And Sanitation Services Company (naruwasco) In Relation To Water Tariff Adjustments, Public Participation, Financial Transparency And Consumer Protection Between Alex Kamau Thuku 1st Petitioner Biashara Ward Residents Association 2nd Petitioner Kivumbini Ward Residents Association 3rd Petitioner Flamingo Ward Residents Association 4th Petitioner Menengai Ward Residents Association 5th Petitioner Nakuru East Ward Residents Association 6th Petitioner and Nakuru Water and Sanitation Services Company (NAWASCO) 1st Respondent Nakuru Rural Water, Sewerage and Sanitation Company (NARUWASCO) 2nd Respondent The Water Services Regulatory Board (WASREB) 3rd Respondent The County Government of Nakuru 4th Respondent The Attorney General 5th Respondent Ruling 1Before this Court is a Notice of Preliminary Objection dated 1st November 2025 filed by the 1st Respondent. The Preliminary Objection challenges the jurisdiction of this Court to hear and determine the Petition dated 21st October 2025. 2.The 1st and the 3rd Respondents filed written submissions in support of the Preliminary Objection on 18th December 2025 and 7th January 2026 respectively. The Petitioners did not file written submissions but made brief oral submissions. 3.The 1st Respondent raises four grounds in its Notice of Preliminary Objection;Ground 1 is that this Court lacks jurisdiction to hear the application as well as the Petition as it offends the express provisions of section 1211 of the Water Act, Cap 372. The subject of the application and the Petition is a decision by the Water Services Regulatory Board WASREB. The Act provides that the Water Tribunal shall hear and determine Appeals at the instance of persons directly affected by the decisions of the Regulatory Board. The subject matter in the Application and Petition therefore fall within the jurisdiction of the Water Tribunal. The application and the petition are hopelessly incompetent.Ground 2 is that this Court lacks jurisdiction to hear and determine a petition seeking to have the 1st Respondent produce information surrounding implementation of water tariffs. This offends the provisions of section 14 of the Access to Information Act, 2016. The review of decisions of public entities with regard to requests for access to information fall squarely within the jurisdiction of the Commission of Administrative Justice.Ground 3 is that the Petitioners herein have failed and/or neglected to exhaust the laid down machinery for dispute resolution set out under the Water Act, 2016 by failing to approach the Water Tribunal. They have similarly failed to write to the Commission as envisioned in the Access to Information Act, 2016.Ground 4 is that the Petition is fatally defective, politically motivated, incompetent, premature, barred in law and an abuse of the Court process as the Petitioners jumped the gun and rushed to court all whilst ignoring express provisions of the law providing channels for reprieve. 4The 1st Respondent submits that the Petitioners have approached this Court with a claim that the 1st Respondent effected increased tariffs without regulatory approval, and have sought an order of Certiorari quashing the decision. The 1st Respondent argues that the Water Act, 2016 established the Water Tribunal for the sole purpose of dispute resolution under Sections 119 to 125. Section 1211 provides that the Tribunal shall hear and determine appeals at the instance of any person directly affected by the decision or order of the Regulatory Board. The Petitioners fall under that category and ought to have approached the Tribunal first. 5On the doctrine of exhaustion, the 1st Respondent relies on the Court of Appeal decision in Speaker of National Assembly v. Karume [1992] KLR 21 for the proposition that where there is a clear procedure for redress prescribed by law, that procedure must be strictly followed. The 1st Respondent also cites Geoffrey Muthiga Kabiru & 2 others v. Samuel Munga Henry & 1756 others [2015] eKLR. 6On the claim for access to information, the 1st Respondent submits that the Petitioners' claim for production of audit reports and financial records falls under the Access to Information Act, 2016. Section 14 of that Act invites any person aggrieved by a decision of a public entity with regard to access to information to apply to the Commission on Administrative Justice for review. The Petitioners have not done so. The 1st Respondent concludes by submitting that the Preliminary Objection is merited and should be allowed with costs. 7The 3rd Respondent submits that the dispute falls within the exclusive remit of the Water Tribunal as established under Sections 119 to 125 of the Water Act, 2016. 8The 3rd Respondent relies on the definition of a preliminary objection in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696. The 3rd Respondent also relies on Owners of Motor Vessel "Lillian S" v. Caltex Oil Kenya Limited [1989] KLR 1 and Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & 2 Others [2012] eKLR for the proposition that jurisdiction is fundamental. 9The 3rd Respondent further relies on Mwakazi & 67 others v. Tavevo Water and Sewerage Company & another Petition E010 of 2024 [2025] KEHC 8848 KLR, a directly analogous case where the High Court held that a water tariff dispute falls within the jurisdiction of the Water Tribunal. The 3rd Respondent concludes by urging this Court to uphold the Preliminary Objection and strike out the Petition. [10]The Petitioners argued that the petition is solely based on a constitutional grievance and that a tribunal cannot determine constitutional issues. The petitioners further stated that the doctrine of exhaustion is not met. The Petitioners also indicated that they rely on Raila Odinga v. IEBC [2017] eKLR, which articulates exceptions to the doctrine of exhaustion. They also relied on Geoffrey Muthinja & another v Samuel Muguna Henry &1756 others 2015 eKLR. 11The Petitioners' argument is therefore twofold: first, that the Water Tribunal lacks jurisdiction to determine constitutional issues; and second, that the doctrine of exhaustion is not absolute and does not bar this Court from hearing the Petition. 12The challenge before me is one of jurisdiction. Jurisdiction is so fundamental that it can be raised at any time, even for the first time on appeal. In Nicholas Kiptoo Korir v. IEBC & 6 Others [2015] eKLR, the Court of Appeal held that the question of jurisdiction can be raised at any stage of the proceedings. A court without jurisdiction cannot make a single step. No amount of procedural irregularity can clothe a court with jurisdiction it does not possess. 13The law on preliminary objections is settled. In Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696, the court held;“A preliminary objection consists of a 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 of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation... a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion." 14The 1st Respondent's PO raises the question of jurisdiction. That is a pure point of law. It assumes the facts as pleaded by the Petitioners are true. It argues that even on those facts, this Court cannot proceed. Grounds 1, 2, and 3 meet the Mukisa test. 15Ground 4 alleges that the Petition is "politically motivated." That is not a point of law. It is a factual allegation that would require evidence. Under Mukisa, such a ground cannot form the basis of a preliminary objection. I therefore strike out Ground 4. It is of no consequence. 16The Court of Appeal in Owners of the Motor Vessel "Lillian S" v. Caltex Oil Kenya Limited [1989] KLR 1 held:“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 its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction." 17The Supreme Court in Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & 2 Others [2012] eKLR held:“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." 18Section 1191 & 2 of the Water Act, 2016 provides:“There is established a Water Tribunal. There shall be a chairperson, appointed by the Judicial Service Commission........" 19Section 1211 of the Water Act, 2016 provides:“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 added. [20]Further, Section 1212 provides:“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." 21Section 124 provides;“A person who is aggrieved by a decision of the Tribunal may, within twenty-one days after the decision of the Tribunal, appeal to the Environment and Land Court....." 22What is not in dispute, and what is a pure question of law, is that the Water Tribunal has jurisdiction to hear appeals from decisions of WASREB under Section 1211 of the Water Act, 2016. The Petitioners, being persons directly affected by the tariff adjustments, fall within that category. 23The Court of Appeal in Speaker of the National Assembly v. Karume [1992] KLR 21 held;“Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed." 24Similarly, the Court of Appeal in Geoffrey Muthiga Kabiru & 2 Others v. Samuel Munga Henry & 1756 Others [2015] eKLR held;“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews... The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts." 25The Petitioners did not appeal to the Water Tribunal. They came directly to this Court. The Petitioners argue that the Tribunal cannot determine constitutional issues. This is the central pillar of their opposition to the Preliminary Objection. 26The Water Tribunal is established under Section 1191 of the Water Act, 2016. Its chairperson is appointed by the Judicial Service Commission and must be a person qualified to be appointed as a judge of the High Court. The Tribunal can grant interim orders, stay orders or temporary injunctions. It can hear evidence. It can determine procedural fairness. It can award relief. 27The Court in Mwakazi & 67 others v. Tavevo Water and Sewerage Company & another Petition E010 of 2024 [2025] KEHC 8848 KLR addressed this very argument. The court held;“.......I would be failing in my duty if I elevate matters of this nature arising out of a simple contract to a constitutional infringement or violation under the bill of rights and fundamental freedoms. Both this court and the water tribunal are creatures of the constitution and the statute. This means therefore that on hierarchy of courts, the impugned decision ought to have been filed and considered by the tribunal pursuant to section 119 and 121 of the Water Act 2016." 28The mere labelling of grievances as "constitutional violations" does not oust the Tribunal's jurisdiction. If that were the law, every statutory appeal could be reframed as a constitutional petition, rendering the exhaustion doctrine meaningless. The Petitioners rely on Raila Odinga v. IEBC [2017] eKLR for the proposition that exhaustion is not absolute. The Court in that case established exceptions to the exhaustion doctrine, including where the statutory remedy is inadequate or where important constitutional values are at stake. 29I have considered this authority. However, the Petitioners have not placed any evidence before me to demonstrate that the Water Tribunal is inadequate. Moreover, the Supreme Court in Kenya Airports Authority v. Mitu-Bell Welfare Society [2021] KESC 34 recognized that exhaustion is not an absolute bar but requires the party seeking exemption to demonstrate exceptional circumstances. The Petitioners in this case have not done so. [30]Section 141 of the Access to Information Act, 2016 No. 31 of 2016 provides:“Subject to subsection 2, an applicant may apply in writing to the Commission requesting a review of any of the following decisions of a public entity or private body in relation to a request for access to information..." 31Section 233 provides:“A person who is not satisfied with an order made by the Commission under subsection 2 may appeal to the High Court within twenty-one days from the date the order was made." 32The Commission on Administrative Justice CAJ has original jurisdiction over access to information complaints. The High Court's jurisdiction is appellate. The Petitioners did not first approach the Commission on Administrative Justice. Even assuming the Petitioners' allegations are true, the law requires them to first exhaust the mechanism under the Access to Information Act before coming to this Court. 33In light of the foregoing, I make the following orders;a.The Preliminary Objection dated 1st November 2025 is hereby upheld. Consequently, the Petition dated 21st October 2025 is hereby struck out.b.Each party to bear their own costs. DATED, SIGNED AND DELIVERED AT NAKURU THIS 9TH DAY OF JULY 2026.J. K. SERGONJUDGEIn presence of:Jamleck/Rutoh C/AKibet holding brief for Nzau for 3rd RespondentAhenda holding brief for Petitioner