REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E499 OF 2023
EMBAKASI NORTH MUST CHANGE…………….............................................………...PETITIONER
VERSUS
NAIROBI CITY WATER AND SEWERAGE
COMPANY LIMITED…………………………………...1 ST RESPONDENT
NAIROBI CITY COUNTY GOVERNMENT………….2 ND RESPONDENT
RULING ON PRELIMINARY OBJECTION
1. The petitioner, Embakasi Must Change, describes itself as a Consortium that brings together over 400 leaders and organizations from Embakasi North Sub County within Nairobi County. That the leaders and organizations are brought from community-based organizations, sports and arts organisations, environmental and climate change organisations, crime reforms organisations and it also involves political leaders, businesses leaders, security representatives and leaders in the education sector. The Consortium seeks to channel development in the sub county, mentor young people and promote justice in the area.
2. The petitioner brought the petition subject of this preliminary objection ruling pursuant to Articles 22 and 23(1) of the Constitution which guarantees every person the right to institute proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened, and invokes jurisdiction of this Court under Article 165 of the Constitution to hear and determine applications for redress of or denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
3. The petitioner claims that the residents of Dandora Estate have gone without water in their taps from 15 th November 2023, three weeks prior to the filing of the petition and that despite efforts by the petitioner and individual members of the public to reach the 1 st respondent to restore water, it had been futile.
4. That as a consequence of there being no running water, and that owing to the large population of residents sharing toilets, toilets cannot be flushed, which pose a public health risk of sprouting of deadly diseases such as cholera and typhoid which have in the past led to sicknesses and deaths resulting therefrom with children being at higher risks since they have to play freely absent their working parents.
5. According to the petitioner, the water shortage in Dandora Estate is an artificial one because the water vendors have access to the said water which they sell at exorbitantly to the residents using Clean Water Tankers. That for a long time, since 2019, over a quarter a million residents of Dandora have suffered shortage of water yet owing to the type of housing in the area, it cannot accommodate tanks for storage while the area is a dumpsite which in itself is a health and environmental risk factor to the residents.
6. It is asserted that the 1 st respondent has failed to provide equitable water distribution system in the city and this has denied the residents of Dandora a clean and healthy environment.
7. The petitioner therefore sought the following reliefs from this court:
a) A declaration that by failing to provide clean, safe and adequate water to the residents of Dandora Estate, the 1 st Respondent has violated the residents’ rights under Articles 28, 43(1) (a), (b) and (d) of the Constitution of Kenya;
b) And order directing the respondents to ensure that the residents of Dandora Estate are provided with continuous, adequate, clean and affordable running water;
c) An order directing the respondents to ensure that the residents of Nairobi City County are provided with continuous, adequate, clean and affordable running water.
d) Any other orders as deemed fit
e) Costs of the suit herein.
8. Simultaneous with the filing of the petition, the petitioner filed a notice of motion dated 6 th December, 2023 seeking for conservatory orders for restoration of water in the Dandora estate and to ensure constant water supply for residents pending the hearing and determination of the petition.
9. In response, the 1 st respondent filed undated grounds of opposition on 16 th January, 2024 contending inter alia, that the petition and the application offend the doctrines of exhaustion of remedies and constitutional avoidance due to failure by the petitioner to pursue the remedies under the Water Act, 2016, an issue that was to be taken by way of a preliminary objection; that the petition does not disclose any reasonable cause of action against the 1 st respondent; that the petition does not meet the thresh hold for a constitutional petition as it does not disclose what rights have been violated and how those rights were violated; that the petitioner has failed to disclose that the relationship between the 1 st respondent and alleged members of the petitioner is contractual and therefore the petition does not meet settled principles established in the cases of Anarita Karimi Njeru v Republic [1976-1980]KLR 1272 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [ 2013] eKLR .
10. The 1 st respondent contends further that the petitioner is guilty of material non-disclosure of the specific meter numbers for its alleged members who are water consumers hence the 1 st respondent cannot investigate alleged disconnection and take remedial measures if any is necessary; that the petition is an abuse of court process by attempting to elevate a purely commercial dispute to a constitutional matter against clear statutory procedures under the Civil procedure Act and the Water Act; that the application does not meet the test for grant of conservatory orders and that no proper factual or legal basis has been laid for grant of the orders sought hence the petition and application are vexatious and abuse of court process.
11. Subsequently, the 1 st respondent also filed a preliminary objection dated 31 st October 2025 contending that the petitioner had failed to exhaust the remedies under sections 72(1), 121 and 124 of the Water Act and Water Service Regulations; that this court lacks jurisdiction to hear and determine the petition and the application as the appropriate forum for ventilation of the issues raised is the Water Tribunal established under section 119 of the Water Act, 2016 whose jurisdiction under section 121(2) includes the power to hear and determine disputes concerning water resources or water services where there is a business contract unless the parties have otherwise agreed to an alternative dispute resolution mechanism; that an appeal against the decision of the Water Tribunal lies to the Environment and Land Court as provide for under section 124 of the Water Act and not to the High Cour; that the petition and the application are therefore frivolous, vexatious and abuse of court process and should be struck out in limine with costs to the 1 st respondent.
12. The 2 nd respondent filed a replying affidavit sworn by its Acting Director, Litigation Department, Mr. Boniface Waweru on 21st June, 2024 *in which he deposes that the petition and application dated 6 th December 2023 are incompetent as they do not point out with the required manner or particularity and specificity how the 2 nd respondent violated the petitioner’s rights under the Constitution.
13. That the petitioner is not a person envisaged under Articles 22 and as defined in Article 260 of the Constitution hence it lacks the locus standi to bring the petition as it is an amorphous group. That there is not even a certificate of registration of the petitioner group to give it a legal capacity to institute these proceedings against the respondents and that the pleadings do not impugn any wrong doing on the part of the 2 nd respondent that has led to residents of Dandora Estate to lack access to adequate water.
14. The rest of the depositions acknowledge that provision of water and sanitation is a devolved function and that on its part, the 2 nd respondent had not connived with water vendors to deny the petitioner adequate water supply. It urged the court to dismiss the petition and the application for abusing court process and being vexatious and frivolous. It also prayed for costs of these proceedings.
15. This court issued directions on 29 th April 2026 for the hearing of the preliminary objection first and parties appeared on 7/5/2026 and argued the preliminary objection dated 31t October, 2025.
16. On behalf of the 1 st respondent, it was submitted that this court has no jurisdiction to hear and determine the petition, in view of the provisions of section 119 of the Water Act. That the preliminary objection is a pure point of law which if allowed will dispose of the petition. On the merit of the preliminary objection, it was submitted that the petitioners seek restoration of water supply arising from interruption of water supply and access to clean water and application of Water Act and Regulations. That to access water, the customer must have a contract and given unique meter numbers and is charged. It was submitted that there are account numbers submitted which are contracted, hence, any issue on supply of water, which is a dispute under Section 121 (2) of the Water Act should be heard by the Water Tribunal. That Regulation 93 of the 2025 Regulations made pursuant to Section 72 of the Water Act provides for a procedure for handling such disputes and that Sections 72(1) (j) and 92 of the Act provides for complaints to the Water Services Regulatory Authority. It was submitted that the 2024 Regulations 89, 90 and 2021 Regulation 132 were applicable as they had similar provisions for resolution of disputes/complaints. That an aggrieved consumer files a grievance to the Water Services Regulatory Board and that the decision of the Authority is appealable to the Water Tribunal under Section 121 and Regulations 91 of the 2025 Regulations, with an ultimate appeal lying to the Environment and Land Court.
17. According to the Respondents, all these are sufficient mechanisms for resolving these disputes under the Water Act. Reliance was placed on S.K Macharia Vs KCB supreme Court of Kenya on jurisdiction and the case of n Geoffrey Muthiga Kabiru & 2 others Vs Samuel Munga Henry and others [2015] eKLR on exhaustion of alternative dispute resolution mechanisms.
18. The respondents based their Preliminary objection on Section 121 (1) and 121(2) of the Water Act. They also relied on Kisumu Water & Sanitation Co. Ltd Vs Touche (2023) eKLR where this court is said to have held that the dispute centred on water services so the dispute ought to have been filed before the Water Tribunal.
19. Further reliance was place don Augustine Michael Murandi & 2 others Vs Loitoktok Water and Sanitation Co. [2017] eKLR Para 46, where the court is said to have stated that the constitutional right did not oust the jurisdiction of the water Tribunal to hear and determine the dispute between the parties. The respondents also relied on Mwakazi & 67 others Vs Tabibo Water and Sewerage Co. & another [2025] KEHC 8848 where it was held that the dispute in question on distribution of water services ought to have been heard by the Water Tribunal. Further reliance was placed on Wairimu vs Murang’a Water Services [2025] 14206.
20. According to the respondents, the issues raised fall squarely within the jurisdiction of the Water Tribunal and ends up to ELC not this court. It was submitted that in any event, the petition has been overtaken by events since it is 3 years since the alleged interruptions of supply was done. This court was urged to allow the preliminary objection and strike out the petition for want of jurisdiction.
21. Counsel for the 2 nd respondent agreed with the 1 st respondent’s position and submissions and argued further that this court has no jurisdiction to hear and determine this petition. He submitted that Jurisdiction can be raised at anytime. He maintained that the petitioner has no locus standi to file this petition because the petitioner is an amorphous unregistered body. That nobody knows who constitutes the consortium and that therefore the question is, if the court was to order for costs, who would pay them. He referred to Mumo Matemu Vs Trusted Society for Human Rights [2014] eKLR .
22. On jurisdiction of this court and ELC, counsel for the 2 nd respondent submitted that the dispute seeks to enforce Article 43 of the Constitution which jurisdiction is given to the ELC. He referenced paragraph 18 of the Petition where the petitioner avers that lack of adequate water has led to poor sanitation, leading them to live in an environment of lessened dignity. He relied on Isaac Kipyego Cherop vs the State Ministry of Water and 142 others [2017] eKLR and submitted that the court held that the right to clean water is intertwined to the right to clean and healthy environment, citing Section 13(3) of the ELC Act.
23. According to the 2 nd respondent, Article 165(5) b is also clear on jurisdiction of the High Court. Reliance was placed on Luthuli Vicaanan Escade Ltd and 3 others Pet E 334/2025 in which a similar petition to enforce Article 43 rights is said to have been struck out on Jurisdictional basis and on another ground that there was no exhaustion of remedies. He urged this court to dismiss the petition with costs.
24. In a rejoinder, the petitioner’s counsel on jurisdiction, that Article 23 of the Constitution gives this court jurisdiction to hear and determine petitions of this nature as well as Article 163 (3) (b). That the Water Tribunal lacks jurisdiction to issue declarations and that only the High Court has original jurisdiction.
25. According to the petitioner, the petition speaks to Articles 43, 28 and that therefore the Water Tribunal cannot make declarations on violation of human rights. It was submitted that the petition was filed on 6/12/2023 and parties had participated in these proceedings and visited areas concerned and even almost entered consent judgment. It was submitted that it was unfortunate that the respondents waited until the end to raise a preliminary objection, to waste time and against the overriding objective of the provisions of section 1A & 1B of the Civil Procedure Act and rule 2,4, & 5 of the Mutunga Rules.
26. Further submission was that even if the Water Tribunal has jurisdiction, this court should protect the overriding principles and ensure timely disposal of this petition.
27. The Petitioner’s counsel submitted that the preliminary objection does not meet the threshold in the Mukisa Biscuit Manufacturing Company Ltd case as the preliminary objection seeks to interrogate the nature of the petition and whether the Water Tribunal has jurisdiction to issue declarations. The preliminary objection was therefore urged to be dismissed.
28. On locus standi, counsel for the 1 st respondent submitted that the petitioner is not registered and that there are no rules governing operations of the consortium. That there being no privity of contract between the petitioner and the 1 st respondent, the petitioner is non suited.
29. On the timing of the preliminary objection, it was submitted that a preliminary objection can be raised at any time even by the court in a judgment.
30. On the alleged negotiations, it was submitted that negotiations do not confer jurisdiction to the court. That Article 162 (2) provides for Environment and Land Court as the Court to hear and determine disputes relating to environment and land while Section 13 of the Environment and Land Court Act are clear on jurisdiction of Environment and Land Court. That Water being a natural resource, any dispute relating to water must go to Environment and Land Court. Reliance was placed on Republic vs Karisa Chengo & others on jurisdiction of the Environment and Land Court and Employment and Labour Relations Court.
31. On Jurisdiction of the Tribunal counsel relied on constitutional avoidance on statutory remedies, arguing that the matter arises from the contracts enforceable by the tribunal and cited the Augustine case.
32. On Threshold of the preliminary objection, reliance was placed on the Mukisa Biscuit case and argued that the preliminary objection raises a pure point of law on jurisdiction of the court as set out in the Owners of Ms Lilian ‘S’ Vs Caltex oil (K) on jurisdiction of the court and downing of tools by the court.
33. The 2 nd respondent’s counsel submitted on participation in the matter for long, arguing that it is not true that they had acquiesced to the case, citing S.K Macharia Vs KCB (supra) and emphasizing that jurisdiction is conferred not by consent of parties but by the Constitution and statute or both.
Analysis and Determination
34. I have considered the preliminary objection as filed and argued by all the parties through their counsel. The main issue for determination is whether the preliminary objection as raised meets the test of a preliminary objection as settled in law and whether it has merit. The locus classicus on preliminary objection is Mukisa Biscuit Manufacturing Co. Limited vs. West End Distributors Limited [1969] EA 696, where Newbold, V.P , observed as follows:
““A preliminary objection consists of a point of law which has been pleaded, or which arises from a 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, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” [emphasis added]
35. A preliminary objection must meet the test of-raising a pure point of law; is argued on the assumption that all pleaded facts are correct; and does not require the court to ascertain facts, exercise discretion, or evaluate evidence.
36. Therefore, a preliminary objection is only competent where its success would dispose of the whole suit. The Court further stated in the above case that:
“ 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. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase cost and, on occasion, …”
37. The question is whether the objections raised on locus standi and exhaustion of remedies as well as the doctrine of a constitutional avoidance are pure points of law which if argued without inviting evidence, will dispose of the petition herein.
38. The issue of locus standi is at the heart of the court’s jurisdiction. Article 22 of the Constitution provides that:
(1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by-
(a) a person acting on behalf of another person who cannot act in their own name;
(b) a person acting as a member of, or in the interest of, a group or class of persons;
(c) a person acting in the public interest; or
(d) an association acting in the interest of one or more of its members.
39. Article 258 of the Constitution provides that:
(1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.
(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by--
(a) a person acting on behalf of another person who cannot act in their own name;
(b) a person acting as a member of, or in the interest of, a group or class of persons;
(c) a person acting in the public interest; or
(d) an association acting in the interest of one or more of its members.
40. Locus standi is defined in Black’s Law Dictionary, 9th Edition (page 1026) as “ the right to bring an action or to be heard in a given forum”.
41. In John Wekesa Khaoya v. Attorney General, Petition No. 60 of 2012; [2013] eKLR the High Court thus expressed the principle of locus standi at (paragraph 4) as follows:
“…the locus standi to file judicial proceedings, representative or otherwise, has been greatly enlarged by the Constitution in Articles 22 and 258 of the Constitution which ensures unhindered access to justice…”
42. Articles 22 and 258 of the Constitution provide that every person has the right to institute proceedings claiming that the Constitution has been contravened; and “person” in this regard, includes one who acts in the public interest.
43. This Court is aware that the 2010 Constitution has liberalised the traditional doctrine of locus standi. Under Articles 22(1) and 258(1), every person may institute court proceedings alleging a violation, threatened violation, or contravention of the Constitution. This reform was intended to broaden access to justice and facilitate public interest litigation.
44. However, as was held by the Supreme Court in Mumo Matemu v Trusted Society of Human Rights Alliance & Others (2014) eKLR , while standing is now widely available, it is not unlimited: a petitioner must still demonstrate a sufficient interest or connection to the constitutional question raised.
45. Locus standi preserves the separation of powers and protects the courts from being drawn into matters that are more appropriately handled by other state organs. In Coalition for Reform and Democracy (CORD) & Another v Republic of Kenya & Another (2015) eKLR , the High Court noted that standing ensures that judicial resources are applied to genuine disputes warranting constitutional adjudication and prevents courts from issuing orders in matters lacking a live or legitimate controversy.
46. The doctrine also serves as a safeguard against frivolous or vexatious litigation. As observed in John Wekesa Khaoya v Attorney General (supra), even under a liberalised framework, courts must ensure that petitions disclose a justiciable issue. Locus standi filters out cases that are speculative, academic, or brought with an improper motive, thereby preserving judicial time and protecting respondents from unnecessary litigation. The Court in the above case stated:
[4] In this matter, the locus standi of the Petitioner to file a public interest litigation is not in issue. In any event, the locus standi to file judicial proceedings, representative or otherwise, has been greatly enlarged by the Constitution in Article 22 and 258 of the Constitution which ensures unhindered access to justice. The matter in question is; whether the Petitioner should pay court fees on this Petition albeit he had filed it without paying court fee.”
47. Locus standi enhances the legitimacy of judicial remedies. As such, judicial orders must be sought and issued to parties who have a proper legal and factual foundation to request relief. Without proper standing, the court risks pronouncing judgments in abstract or hypothetical terms, thereby undermining the rule of law and constitutional governance.
48. Even in public interest litigation, standing provides a structured avenue through which the court may intervene responsibly. The Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others (2014) reaffirmed that courts are not advisory bodies and may act only when approached by a party with proper standing in a live dispute. This ensures that constitutional adjudication is both legitimate and authoritative.
49. In conclusion, locus standi in constitutional litigation serves multiple critical functions:
I. It ensures that only parties with a legitimate interest invoke the Court’s jurisdiction;
II. It prevents abuse of judicial processes;
III. It anchors remedies to genuine disputes;
IV. It preserves public resources and judicial time; and
V. It maintains the separation of powers by ensuring that courts act within their constitutional mandate.
50. From the above exposition, it is clear that an objection on locus standi is a proper preliminary objection because standing goes to the court's jurisdiction to hear a party's claim. Where, for example, the pleadings show that the petitioner has no legal capacity to sue, has no legal interest recognized in law or that legislation limits who may bring the proceedings, then the proceedings must come to a halt.
51. Therefore, on whether the petitioner herein has locus standi to bring this petition, the respondents contend that the petitioner is an amorphous body with no registration certificate hence incapable of suing and being sued and that even if the court were to find the petition merited or not merited and it awarded costs, there is no one to be executed against.
52. The petitioner describes itself as “a consortium that brings together over 400 leaders and organisations from Embakasi North subcounty within Nairobi County. That the leaders and organisations are brought from community-based organisations, religious organisations, sports and arts organisations, environmental and climate change organisations, crime reforms organisations, and it also involves political leaders, business leaders, security representatives and leaders in the education sector. That the consortium seeks to channel development in the subcounty, mentor young people and promote justice in the area.”
53. Is that consortium, with no evidence that it is a registered association and instituting this petition in the public interest capable of being a person envisaged under Article 22, 258 and 260 of the Constitution? My quick answer is a plain no. An amorphous body cannot claim to have locus standi to sue or be sued. A body that is neither a legal entity nor registered nor recognized under any law of the land, not even registered under the Ministry responsible for Social Services cannot claim constitutional protection or sue in its name.
54. The Court of Appeal in Finmax Community Based Group & 3 others v Kericho Technical Institute [2021] eKLR considered the issue of locus standi, referring to the Mumo Matemu case and stated as follows:
“Having found that the respondent did not discharge its burden of proof, we need not consider the next and final ground; the capacity of the appellants to be sued. But for the development of the law, we shall consider it nonetheless. The appellants were sued as Finmax Community Based Group, the Chairman, Treasurer and Secretary. It was readily admitted that the 1 st appellant was registered, as the name shows, as a community-based Group under the Ministry of Gender, Children and Social Development. The 2 nd, 3rd and 4th appellants were its officials. The question posed to the Judge was whether, in those circumstances the respondent could institute an action against appellants. In his answer, the Judge found that the 1st appellant could only be sued through its officials. But since the 1st appellant’s Chairman, Secretary and Treasurer were joined in the suit, the Judge was of the view that that was sufficient; and that to insist on the particulars of theofficials would be to place technicality above substance. He also justified the joinder on the ground that, since in such community organizations high turnover of officials is expected, it is wise to sue the office and not the specific officials, who may have vacated those officesat the time an action is instituted. The 1st appellant is an unincorporated association and therefore in law is not a legal personality with the capacity to sue or to be sued. For along time, courts have held that such bodies could not sue or be sued. However, with the advent of the 2010 Constitution, this position appears to have changed. Article 260 which is the Interpretation section of the Constitution defines “a person” to include; “… a company, association or other body of persons whether incorporated or unincorporated”. (Own emphasis). As regards institution of court actions, Article 50, dealing with issues of fair hearing gives; “(1) Every person …. the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body”. It would seem, from the foregoing, that an association like the 1 st appellant is “a person” who may institute proceedings and also be sued. However, the question today is not whether unincorporated entities may commence action or how actions against them may be commenced, but rather, the manner of commencing proceedings. It is equally also settled that they cannot maintain an action or actions brought against them in their names. Proceedings on their behalf or against them can only be through the registered officials, whose particulars, names and capacity must clearly be indicated in the suit. See Grace Mwenda Munjuri vs. Trustee of the Agricultural Society of Kenya[2014]eKLR. In this appeal, the 1st appellant, being an unincorporated organization, had no capacity to be sued in its own name. The respondent could only institute the suit as against named officials. Titles like Chairman, secretary or treasurer cannot be used as those are not legal persons against whom orders may be executed by the successful party in the proceedings. For the reasons we have given, this appeal succeeds. We accordingly allow it by setting aside the judgment and order of the High Court made on 24th March, 2015 and amended on 22 nd April, 2015 and substitute it with an order dismissing the respondent’s suit”.
55. In Kisumu Bar Owners Association v Cabine
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E499 OF 2023
EMBAKASI NORTH MUST CHANGE…………….............................................………...PETITIONER
VERSUS
NAIROBI CITY WATER AND SEWERAGE
COMPANY LIMITED…………………………………...1 ST RESPONDENT
NAIROBI CITY COUNTY GOVERNMENT………….2 ND RESPONDENT
RULING ON PRELIMINARY OBJECTION
1. The petitioner, Embakasi Must Change, describes itself as a Consortium that brings together over 400 leaders and organizations from Embakasi North Sub County within Nairobi County. That the leaders and organizations are brought from community-based organizations, sports and arts organisations, environmental and climate change organisations, crime reforms organisations and it also involves political leaders, businesses leaders, security representatives and leaders in the education sector. The Consortium seeks to channel development in the sub county, mentor young people and promote justice in the area.
2. The petitioner brought the petition subject of this preliminary objection ruling pursuant to Articles 22 and 23(1) of the Constitution which guarantees every person the right to institute proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened, and invokes jurisdiction of this Court under Article 165 of the Constitution to hear and determine applications for redress of or denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
3. The petitioner claims that the residents of Dandora Estate have gone without water in their taps from 15 th November 2023, three weeks prior to the filing of the petition and that despite efforts by the petitioner and individual members of the public to reach the 1 st respondent to restore water, it had been futile.
4. That as a consequence of there being no running water, and that owing to the large population of residents sharing toilets, toilets cannot be flushed, which pose a public health risk of sprouting of deadly diseases such as cholera and typhoid which have in the past led to sicknesses and deaths resulting therefrom with children being at higher risks since they have to play freely absent their working parents.
5. According to the petitioner, the water shortage in Dandora Estate is an artificial one because the water vendors have access to the said water which they sell at exorbitantly to the residents using Clean Water Tankers. That for a long time, since 2019, over a quarter a million residents of Dandora have suffered shortage of water yet owing to the type of housing in the area, it cannot accommodate tanks for storage while the area is a dumpsite which in itself is a health and environmental risk factor to the residents.
6. It is asserted that the 1 st respondent has failed to provide equitable water distribution system in the city and this has denied the residents of Dandora a clean and healthy environment.
7. The petitioner therefore sought the following reliefs from this court:
a) A declaration that by failing to provide clean, safe and adequate water to the residents of Dandora Estate, the 1 st Respondent has violated the residents’ rights under Articles 28, 43(1) (a), (b) and (d) of the Constitution of Kenya;
b) And order directing the respondents to ensure that the residents of Dandora Estate are provided with continuous, adequate, clean and affordable running water;
c) An order directing the respondents to ensure that the residents of Nairobi City County are provided with continuous, adequate, clean and affordable running water.
d) Any other orders as deemed fit
e) Costs of the suit herein.
8. Simultaneous with the filing of the petition, the petitioner filed a notice of motion dated 6 th December, 2023 seeking for conservatory orders for restoration of water in the Dandora estate and to ensure constant water supply for residents pending the hearing and determination of the petition.
9. In response, the 1 st respondent filed undated grounds of opposition on 16 th January, 2024 contending inter alia, that the petition and the application offend the doctrines of exhaustion of remedies and constitutional avoidance due to failure by the petitioner to pursue the remedies under the Water Act, 2016, an issue that was to be taken by way of a preliminary objection; that the petition does not disclose any reasonable cause of action against the 1 st respondent; that the petition does not meet the thresh hold for a constitutional petition as it does not disclose what rights have been violated and how those rights were violated; that the petitioner has failed to disclose that the relationship between the 1 st respondent and alleged members of the petitioner is contractual and therefore the petition does not meet settled principles established in the cases of Anarita Karimi Njeru v Republic [1976-1980]KLR 1272 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [ 2013] eKLR .
10. The 1 st respondent contends further that the petitioner is guilty of material non-disclosure of the specific meter numbers for its alleged members who are water consumers hence the 1 st respondent cannot investigate alleged disconnection and take remedial measures if any is necessary; that the petition is an abuse of court process by attempting to elevate a purely commercial dispute to a constitutional matter against clear statutory procedures under the Civil procedure Act and the Water Act; that the application does not meet the test for grant of conservatory orders and that no proper factual or legal basis has been laid for grant of the orders sought hence the petition and application are vexatious and abuse of court process.
11. Subsequently, the 1 st respondent also filed a preliminary objection dated 31 st October 2025 contending that the petitioner had failed to exhaust the remedies under sections 72(1), 121 and 124 of the Water Act and Water Service Regulations; that this court lacks jurisdiction to hear and determine the petition and the application as the appropriate forum for ventilation of the issues raised is the Water Tribunal established under section 119 of the Water Act, 2016 whose jurisdiction under section 121(2) includes the power to hear and determine disputes concerning water resources or water services where there is a business contract unless the parties have otherwise agreed to an alternative dispute resolution mechanism; that an appeal against the decision of the Water Tribunal lies to the Environment and Land Court as provide for under section 124 of the Water Act and not to the High Cour; that the petition and the application are therefore frivolous, vexatious and abuse of court process and should be struck out in limine with costs to the 1 st respondent.
12. The 2 nd respondent filed a replying affidavit sworn by its Acting Director, Litigation Department, Mr. Boniface Waweru on 21st June, 2024 *in which he deposes that the petition and application dated 6 th December 2023 are incompetent as they do not point out with the required manner or particularity and specificity how the 2 nd respondent violated the petitioner’s rights under the Constitution.
13. That the petitioner is not a person envisaged under Articles 22 and as defined in Article 260 of the Constitution hence it lacks the locus standi to bring the petition as it is an amorphous group. That there is not even a certificate of registration of the petitioner group to give it a legal capacity to institute these proceedings against the respondents and that the pleadings do not impugn any wrong doing on the part of the 2 nd respondent that has led to residents of Dandora Estate to lack access to adequate water.
14. The rest of the depositions acknowledge that provision of water and sanitation is a devolved function and that on its part, the 2 nd respondent had not connived with water vendors to deny the petitioner adequate water supply. It urged the court to dismiss the petition and the application for abusing court process and being vexatious and frivolous. It also prayed for costs of these proceedings.
15. This court issued directions on 29 th April 2026 for the hearing of the preliminary objection first and parties appeared on 7/5/2026 and argued the preliminary objection dated 31t October, 2025.
16. On behalf of the 1 st respondent, it was submitted that this court has no jurisdiction to hear and determine the petition, in view of the provisions of section 119 of the Water Act. That the preliminary objection is a pure point of law which if allowed will dispose of the petition. On the merit of the preliminary objection, it was submitted that the petitioners seek restoration of water supply arising from interruption of water supply and access to clean water and application of Water Act and Regulations. That to access water, the customer must have a contract and given unique meter numbers and is charged. It was submitted that there are account numbers submitted which are contracted, hence, any issue on supply of water, which is a dispute under Section 121 (2) of the Water Act should be heard by the Water Tribunal. That Regulation 93 of the 2025 Regulations made pursuant to Section 72 of the Water Act provides for a procedure for handling such disputes and that Sections 72(1) (j) and 92 of the Act provides for complaints to the Water Services Regulatory Authority. It was submitted that the 2024 Regulations 89, 90 and 2021 Regulation 132 were applicable as they had similar provisions for resolution of disputes/complaints. That an aggrieved consumer files a grievance to the Water Services Regulatory Board and that the decision of the Authority is appealable to the Water Tribunal under Section 121 and Regulations 91 of the 2025 Regulations, with an ultimate appeal lying to the Environment and Land Court.
17. According to the Respondents, all these are sufficient mechanisms for resolving these disputes under the Water Act. Reliance was placed on S.K Macharia Vs KCB supreme Court of Kenya on jurisdiction and the case of n Geoffrey Muthiga Kabiru & 2 others Vs Samuel Munga Henry and others [2015] eKLR on exhaustion of alternative dispute resolution mechanisms.
18. The respondents based their Preliminary objection on Section 121 (1) and 121(2) of the Water Act. They also relied on Kisumu Water & Sanitation Co. Ltd Vs Touche (2023) eKLR where this court is said to have held that the dispute centred on water services so the dispute ought to have been filed before the Water Tribunal.
19. Further reliance was place don Augustine Michael Murandi & 2 others Vs Loitoktok Water and Sanitation Co. [2017] eKLR Para 46, where the court is said to have stated that the constitutional right did not oust the jurisdiction of the water Tribunal to hear and determine the dispute between the parties. The respondents also relied on Mwakazi & 67 others Vs Tabibo Water and Sewerage Co. & another [2025] KEHC 8848 where it was held that the dispute in question on distribution of water services ought to have been heard by the Water Tribunal. Further reliance was placed on Wairimu vs Murang’a Water Services [2025] 14206.
20. According to the respondents, the issues raised fall squarely within the jurisdiction of the Water Tribunal and ends up to ELC not this court. It was submitted that in any event, the petition has been overtaken by events since it is 3 years since the alleged interruptions of supply was done. This court was urged to allow the preliminary objection and strike out the petition for want of jurisdiction.
21. Counsel for the 2 nd respondent agreed with the 1 st respondent’s position and submissions and argued further that this court has no jurisdiction to hear and determine this petition. He submitted that Jurisdiction can be raised at anytime. He maintained that the petitioner has no locus standi to file this petition because the petitioner is an amorphous unregistered body. That nobody knows who constitutes the consortium and that therefore the question is, if the court was to order for costs, who would pay them. He referred to Mumo Matemu Vs Trusted Society for Human Rights [2014] eKLR .
22. On jurisdiction of this court and ELC, counsel for the 2 nd respondent submitted that the dispute seeks to enforce Article 43 of the Constitution which jurisdiction is given to the ELC. He referenced paragraph 18 of the Petition where the petitioner avers that lack of adequate water has led to poor sanitation, leading them to live in an environment of lessened dignity. He relied on Isaac Kipyego Cherop vs the State Ministry of Water and 142 others [2017] eKLR and submitted that the court held that the right to clean water is intertwined to the right to clean and healthy environment, citing Section 13(3) of the ELC Act.
23. According to the 2 nd respondent, Article 165(5) b is also clear on jurisdiction of the High Court. Reliance was placed on Luthuli Vicaanan Escade Ltd and 3 others Pet E 334/2025 in which a similar petition to enforce Article 43 rights is said to have been struck out on Jurisdictional basis and on another ground that there was no exhaustion of remedies. He urged this court to dismiss the petition with costs.
24. In a rejoinder, the petitioner’s counsel on jurisdiction, that Article 23 of the Constitution gives this court jurisdiction to hear and determine petitions of this nature as well as Article 163 (3) (b). That the Water Tribunal lacks jurisdiction to issue declarations and that only the High Court has original jurisdiction.
25. According to the petitioner, the petition speaks to Articles 43, 28 and that therefore the Water Tribunal cannot make declarations on violation of human rights. It was submitted that the petition was filed on 6/12/2023 and parties had participated in these proceedings and visited areas concerned and even almost entered consent judgment. It was submitted that it was unfortunate that the respondents waited until the end to raise a preliminary objection, to waste time and against the overriding objective of the provisions of section 1A & 1B of the Civil Procedure Act and rule 2,4, & 5 of the Mutunga Rules.
26. Further submission was that even if the Water Tribunal has jurisdiction, this court should protect the overriding principles and ensure timely disposal of this petition.
27. The Petitioner’s counsel submitted that the preliminary objection does not meet the threshold in the Mukisa Biscuit Manufacturing Company Ltd case as the preliminary objection seeks to interrogate the nature of the petition and whether the Water Tribunal has jurisdiction to issue declarations. The preliminary objection was therefore urged to be dismissed.
28. On locus standi, counsel for the 1 st respondent submitted that the petitioner is not registered and that there are no rules governing operations of the consortium. That there being no privity of contract between the petitioner and the 1 st respondent, the petitioner is non suited.
29. On the timing of the preliminary objection, it was submitted that a preliminary objection can be raised at any time even by the court in a judgment.
30. On the alleged negotiations, it was submitted that negotiations do not confer jurisdiction to the court. That Article 162 (2) provides for Environment and Land Court as the Court to hear and determine disputes relating to environment and land while Section 13 of the Environment and Land Court Act are clear on jurisdiction of Environment and Land Court. That Water being a natural resource, any dispute relating to water must go to Environment and Land Court. Reliance was placed on Republic vs Karisa Chengo & others on jurisdiction of the Environment and Land Court and Employment and Labour Relations Court.
31. On Jurisdiction of the Tribunal counsel relied on constitutional avoidance on statutory remedies, arguing that the matter arises from the contracts enforceable by the tribunal and cited the Augustine case.
32. On Threshold of the preliminary objection, reliance was placed on the Mukisa Biscuit case and argued that the preliminary objection raises a pure point of law on jurisdiction of the court as set out in the Owners of Ms Lilian ‘S’ Vs Caltex oil (K) on jurisdiction of the court and downing of tools by the court.
33. The 2 nd respondent’s counsel submitted on participation in the matter for long, arguing that it is not true that they had acquiesced to the case, citing S.K Macharia Vs KCB (supra) and emphasizing that jurisdiction is conferred not by consent of parties but by the Constitution and statute or both.
Analysis and Determination
34. I have considered the preliminary objection as filed and argued by all the parties through their counsel. The main issue for determination is whether the preliminary objection as raised meets the test of a preliminary objection as settled in law and whether it has merit. The locus classicus on preliminary objection is Mukisa Biscuit Manufacturing Co. Limited vs. West End Distributors Limited [1969] EA 696, where Newbold, V.P , observed as follows:
““A preliminary objection consists of a point of law which has been pleaded, or which arises from a 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, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” [emphasis added]
35. A preliminary objection must meet the test of-raising a pure point of law; is argued on the assumption that all pleaded facts are correct; and does not require the court to ascertain facts, exercise discretion, or evaluate evidence.
36. Therefore, a preliminary objection is only competent where its success would dispose of the whole suit. The Court further stated in the above case that:
“ 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. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase cost and, on occasion, …”
37. The question is whether the objections raised on locus standi and exhaustion of remedies as well as the doctrine of a constitutional avoidance are pure points of law which if argued without inviting evidence, will dispose of the petition herein.
38. The issue of locus standi is at the heart of the court’s jurisdiction. Article 22 of the Constitution provides that:
(1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by-
(a) a person acting on behalf of another person who cannot act in their own name;
(b) a person acting as a member of, or in the interest of, a group or class of persons;
(c) a person acting in the public interest; or
(d) an association acting in the interest of one or more of its members.
39. Article 258 of the Constitution provides that:
(1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.
(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by--
(a) a person acting on behalf of another person who cannot act in their own name;
(b) a person acting as a member of, or in the interest of, a group or class of persons;
(c) a person acting in the public interest; or
(d) an association acting in the interest of one or more of its members.
40. Locus standi is defined in Black’s Law Dictionary, 9th Edition (page 1026) as “ the right to bring an action or to be heard in a given forum”.
41. In John Wekesa Khaoya v. Attorney General, Petition No. 60 of 2012; [2013] eKLR the High Court thus expressed the principle of locus standi at (paragraph 4) as follows:
“…the locus standi to file judicial proceedings, representative or otherwise, has been greatly enlarged by the Constitution in Articles 22 and 258 of the Constitution which ensures unhindered access to justice…”
42. Articles 22 and 258 of the Constitution provide that every person has the right to institute proceedings claiming that the Constitution has been contravened; and “person” in this regard, includes one who acts in the public interest.
43. This Court is aware that the 2010 Constitution has liberalised the traditional doctrine of locus standi. Under Articles 22(1) and 258(1), every person may institute court proceedings alleging a violation, threatened violation, or contravention of the Constitution. This reform was intended to broaden access to justice and facilitate public interest litigation.
44. However, as was held by the Supreme Court in Mumo Matemu v Trusted Society of Human Rights Alliance & Others (2014) eKLR , while standing is now widely available, it is not unlimited: a petitioner must still demonstrate a sufficient interest or connection to the constitutional question raised.
45. Locus standi preserves the separation of powers and protects the courts from being drawn into matters that are more appropriately handled by other state organs. In Coalition for Reform and Democracy (CORD) & Another v Republic of Kenya & Another (2015) eKLR , the High Court noted that standing ensures that judicial resources are applied to genuine disputes warranting constitutional adjudication and prevents courts from issuing orders in matters lacking a live or legitimate controversy.
46. The doctrine also serves as a safeguard against frivolous or vexatious litigation. As observed in John Wekesa Khaoya v Attorney General (supra), even under a liberalised framework, courts must ensure that petitions disclose a justiciable issue. Locus standi filters out cases that are speculative, academic, or brought with an improper motive, thereby preserving judicial time and protecting respondents from unnecessary litigation. The Court in the above case stated:
[4] In this matter, the locus standi of the Petitioner to file a public interest litigation is not in issue. In any event, the locus standi to file judicial proceedings, representative or otherwise, has been greatly enlarged by the Constitution in Article 22 and 258 of the Constitution which ensures unhindered access to justice. The matter in question is; whether the Petitioner should pay court fees on this Petition albeit he had filed it without paying court fee.”
47. Locus standi enhances the legitimacy of judicial remedies. As such, judicial orders must be sought and issued to parties who have a proper legal and factual foundation to request relief. Without proper standing, the court risks pronouncing judgments in abstract or hypothetical terms, thereby undermining the rule of law and constitutional governance.
48. Even in public interest litigation, standing provides a structured avenue through which the court may intervene responsibly. The Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others (2014) reaffirmed that courts are not advisory bodies and may act only when approached by a party with proper standing in a live dispute. This ensures that constitutional adjudication is both legitimate and authoritative.
49. In conclusion, locus standi in constitutional litigation serves multiple critical functions:
I. It ensures that only parties with a legitimate interest invoke the Court’s jurisdiction;
II. It prevents abuse of judicial processes;
III. It anchors remedies to genuine disputes;
IV. It preserves public resources and judicial time; and
V. It maintains the separation of powers by ensuring that courts act within their constitutional mandate.
50. From the above exposition, it is clear that an objection on locus standi is a proper preliminary objection because standing goes to the court's jurisdiction to hear a party's claim. Where, for example, the pleadings show that the petitioner has no legal capacity to sue, has no legal interest recognized in law or that legislation limits who may bring the proceedings, then the proceedings must come to a halt.
51. Therefore, on whether the petitioner herein has locus standi to bring this petition, the respondents contend that the petitioner is an amorphous body with no registration certificate hence incapable of suing and being sued and that even if the court were to find the petition merited or not merited and it awarded costs, there is no one to be executed against.
52. The petitioner describes itself as “a consortium that brings together over 400 leaders and organisations from Embakasi North subcounty within Nairobi County. That the leaders and organisations are brought from community-based organisations, religious organisations, sports and arts organisations, environmental and climate change organisations, crime reforms organisations, and it also involves political leaders, business leaders, security representatives and leaders in the education sector. That the consortium seeks to channel development in the subcounty, mentor young people and promote justice in the area.”
53. Is that consortium, with no evidence that it is a registered association and instituting this petition in the public interest capable of being a person envisaged under Article 22, 258 and 260 of the Constitution? My quick answer is a plain no. An amorphous body cannot claim to have locus standi to sue or be sued. A body that is neither a legal entity nor registered nor recognized under any law of the land, not even registered under the Ministry responsible for Social Services cannot claim constitutional protection or sue in its name.
54. The Court of Appeal in Finmax Community Based Group & 3 others v Kericho Technical Institute [2021] eKLR considered the issue of locus standi, referring to the Mumo Matemu case and stated as follows:
“Having found that the respondent did not discharge its burden of proof, we need not consider the next and final ground; the capacity of the appellants to be sued. But for the development of the law, we shall consider it nonetheless. The appellants were sued as Finmax Community Based Group, the Chairman, Treasurer and Secretary. It was readily admitted that the 1 st appellant was registered, as the name shows, as a community-based Group under the Ministry of Gender, Children and Social Development. The 2 nd, 3rd and 4th appellants were its officials. The question posed to the Judge was whether, in those circumstances the respondent could institute an action against appellants. In his answer, the Judge found that the 1st appellant could only be sued through its officials. But since the 1st appellant’s Chairman, Secretary and Treasurer were joined in the suit, the Judge was of the view that that was sufficient; and that to insist on the particulars of theofficials would be to place technicality above substance. He also justified the joinder on the ground that, since in such community organizations high turnover of officials is expected, it is wise to sue the office and not the specific officials, who may have vacated those officesat the time an action is instituted. The 1st appellant is an unincorporated association and therefore in law is not a legal personality with the capacity to sue or to be sued. For along time, courts have held that such bodies could not sue or be sued. However, with the advent of the 2010 Constitution, this position appears to have changed. Article 260 which is the Interpretation section of the Constitution defines “a person” to include; “… a company, association or other body of persons whether incorporated or unincorporated”. (Own emphasis). As regards institution of court actions, Article 50, dealing with issues of fair hearing gives; “(1) Every person …. the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body”. It would seem, from the foregoing, that an association like the 1 st appellant is “a person” who may institute proceedings and also be sued. However, the question today is not whether unincorporated entities may commence action or how actions against them may be commenced, but rather, the manner of commencing proceedings. It is equally also settled that they cannot maintain an action or actions brought against them in their names. Proceedings on their behalf or against them can only be through the registered officials, whose particulars, names and capacity must clearly be indicated in the suit. See Grace Mwenda Munjuri vs. Trustee of the Agricultural Society of Kenya[2014]eKLR. In this appeal, the 1st appellant, being an unincorporated organization, had no capacity to be sued in its own name. The respondent could only institute the suit as against named officials. Titles like Chairman, secretary or treasurer cannot be used as those are not legal persons against whom orders may be executed by the successful party in the proceedings. For the reasons we have given, this appeal succeeds. We accordingly allow it by setting aside the judgment and order of the High Court made on 24th March, 2015 and amended on 22 nd April, 2015 and substitute it with an order dismissing the respondent’s suit”.
55. In Kisumu Bar Owners Association v Cabine
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