[2024] KEELC 13847 (KLR)

Twinstar Education Centre v Nairobi City Water and Sewerage Company (Environment & Land Case E099 of 2023) [2024] KEELC 13847 (KLR) (11 December 2024) (Judgment)

Neutral citation: [2024] KEELC 13847 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E099 of 2023

AA Omollo, J

December 11, 2024

Between

Twinstar Education Centre

Plaintiff

and

Nairobi City Water and Sewerage Company

Defendant

Judgment

1. On 18th December, 2023, the Plaintiff’s suit was dismissed for want of prosecution. The Defendant had filed a defence and counter-claim dated 30th May 2023 which then proceeded to hearing. In the counter-claim, the Defendant pleaded that the Plaintiff had made illegal water connections which they were discharging to the school and selling to water tankers. The Defendant also accused the Plaintiff of selling a fast-sucking water pump on the main line and in so doing interfered with the supply to other users.

2. The Defendant sought the following reliefs;(a)Judgment be entered in favour of the Defendant for Kenya shillings Five million Six Hundred and fifty-four thousand three hundred and ten and eighty-six cents(Ksh 5,654,310. 86/-);(b)interest on (a) above at court rates from the date of filing of this Counterclaim until payment in full;(c)costs of this Counterclaim; and(d)any other relief this Honourable court deems fit and just.

3. The Plaintiff did not file a defence to the counter-claim besides the Witness Statement and a Supporting Affidavit dated 13th March 2023 filed in support of their original claim. The hearing also proceeded ex parte as the Plaintiff did not attend court despite being served. To prove their claim, the Defendant called a total of 3 witnesses

he Defendant’s case and evidence 4. Moreover, the Defendant suffered loss of revenue from the Plaintiff’s actions as other users failed to get normal water supply from April 2017 to April 2023. The Plaintiff benefitted from the sale of water without paying for it and the double connection on the same piece of suit property. The particulars of fraud are listed in the Witness Statements filed by different officers of the Defendant and the testimonies given in court.

5. The Defendant called Tom Onduru as its first witness. He introduced himself as working as an investigating assistant for the Defendant since 20213 and adopted his witness statement dated 29th April 2024. He also produced as exhibits documents contained in the list dated 30th May 2023 filed alongside the defence and counter-claim. The witness averred that the Plaintiff had opened a water account with them in 2016 which account is still active. That another account was opened in the year 2021 in the name of Pauline Musyimi with the same land reference. He added that they lodged a criminal case at the city court but which he could not tell whether it had been concluded or not.

6. Norah Koech testified as DW2 by adopting her witness statement dated 6th July 2023. She stated that the investigating team were able to identify the illegal connections and they sought her technical assistance. That she was able to identify the two accounts in the impugned premises; one in the name of plaintiff and the second in the name of Pauline Musimi who is the head of school.

7. According to her, the meter number in Paulin’s name ought to have been in a different land reference number. DW2 posited that there were also connections done not going through the meter but which were directed to three tanks of 8000 litres each. She assisted the team in removing the illegal connections/pipes.

8. Brigid Njoki Ngare testified as DW3 and she stated that she reviewed the report from the technical committee on the illegalities and calculated the loss suffered by the Defendant following the illegal water connections. That she used the tariffs provided for under the Water Act and gazette notice number 7335 of 2. 10. 2015. The calculation was for the period April 2017 upto April 2023 minus monies paid by the Plaintiff. In cross examination by the Court, the witness stated that the Plaintiff was using 8000 litres per day because they were selling water to the public. This marked the close of the Defendant’s case.

9. Learned counsel for the Defendant filed written submissions which I have read and considered. It is submitted for the defendant that this being a liquidated claim which has not been defended, the same ought to be granted as prayed although they have also proved their claim.

Analysis and Determination: 10. The claim as pleaded in the counter-claim may appear to be a liquidated claim but it is more of a claim for damages alleged suffered/incurred as a result to what is termed as illegal connections by the Plaintiff. Consequently, it is my considered view that the Defendant had a duty to demonstrate that indeed they suffered loss of income in the amount claimed. My role therefore is to assess whether that duty has been discharged. It is pleaded that the Plaintiff had fixed two booster pumps that were causing water shortages in the surrounding area; a violation of section 145 (f) of the Water Act 2016 (henceforth referred to as ‘the Act’) that states that ‘it is illegal to unlawfully interfere with water supply works of the licensee; the Defendant’.

11. It is the Defence claim that their investigation found that the two pumps were siphoning water from two illegal connections that were not metred and which is a criminal offence under section 145 (e) of the Act. There is charge sheet produced as Dex-1 where the name of the accused is given as Antony Kimiyu Musimi in criminal case no. 2555 of 2023. DW1 said he was not aware if this matter had been concluded since they had not received a copy of the judgement. Antony Musimi had sworn an affidavit in support of the Plaintiff’s application that he was a director of the Plaintiff.

12. The Plaintiff had initially alleged that the Defendant had acted maliciously, arbitrarily and without any justification when it disconnected the water supply. The Plaintiff claimed that the Defendant had vandalised and damaged taps and pipes worth Kenya shillings Fifty Thousand [Ksh 50,000/-). This confirms the actions taken by the technical team as stated in the evidence of DW2. The Plaintiff falied to call evidence to justify their complaint under section 60 (5) of the Act; which states that the Defendant is allowed to carry out reasonable damage in cases of illegal connections; as was the case with the Plaintiff.

13. The Defendant averred a second account was opened fraudulently in 2021 under the same suit property and which account was registered in the name of Pauline Kalinde Musyimi using a different LR number to conceal that there was another account for the same premises. I am not satisfied that proof was made that only one account number can be operated under one land reference. The documents opening the second account were issued by the Defendant and they did not bring evidence that they were forged.

14. The Defendant also alleged that the Plaintiff was selling water to water tankers from water collected from the illegal connections but no evidence was led to prove this assertion. However, vide a letter dated 4th April 2023 addressed to the Plaintiff, an explanation is given on how the amount claimed is arrived at. The said letter read in part thus;“This is to inform you that the bills for the referenced account (No. 5152376) have been adjusted. The adjustment was done so as to recover consumption for the period from April 2017 to April 2023 when the connection was by passed” (underline mine for emphasis).

15. The Defendant particularised the loss as follows:a.The Defendant had lost water from two illegal connections valued at Kenya shillings Five Million Six Hundred and Fifty-Four Thousand Three Hundred and Ten and Eighty Cents. [Ksh 5,654,310. 86/-] calculated according to the gazetted Water Tariff.b.Fraud charges for two illegal connections each Kenya shillings One Hundred Thousand [Ksh 100,000/-]; a total of Kenya shillings Two Hundred Thousand [Ksh 200,000/-]; also indicated in the water tariff.c.Damages for the removal of the illegal connections which included the Defendant’s excavator deployed at Kenya shillings Fifteen Thousand [Ksh 15,000/-] per hour to excavate the main for an hour fifteen minutes at a total cost of Kenya shillings Eighteen Thousand Seven Hundred and Fifty [Ksh 18,750/-];d.Other reconnections such as pipes and fittings cost Kenya Shillings Two Thousand [Ksh 2,000/-]e.The two booster pumps on the line; each at Kenya shillings Ten Thousand [Ksh 10,000/-].

16. Concerning interest, section 6 (1) of the Civil Procedure Act states that ‘where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.’

17. I therefore find that the Defendant’s prayers are merited and allow the counter-claim as presented.

DATED, SIGNED AND DELIVERED AT NAIROBI AT THIS 11TH DAY OF DECEMBER, 2024. A. OMOLLOJUDGE