MARK KICHIRCHIR LIMO AND 7 OTHERS VS ELDORET WATER AND SANITATION CO. LTD (ELDOWAS)

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JUDGMENT

1. The 1^st to 9^th Petitioners (hereinafter referred to as “the Petitioners”), filed a Petition dated 27^th May, 2025 (hereinafter referred to as “the present Petition”) against the 1^st and 2^nd respondents seeking for the following orders: -
2. A declaration that the increment of Private Exhausters charges vide Legal Gazette Notice No. Gazette Notice No. 12825 issued on 4^th October, 2024 by the 1^st Respondent violates the Petitioners legitimate expectation of fair administrative action on the part of the 1^st Respondent as guaranteed and protected under Article 47 of the Constitution.
3. A declaration that the Petitioner members’ fundamental rights and freedoms as enshrined under Article 27 and 47 of the Constitution of Kenya 2010 have been contravened and infringed upon by the 1^st Respondent.
4. A declaration that the process that led to the increased charges with regard to Private Exhausters in respect of dumping into the 1^st Respondent’s sewer system vide Legal Gazette No. Legal Gazette Notice No.12825 is flawed, irregular and as such null and void ab ignition.
5. An order of prohibition, prohibiting the Respondents from enforcing the increased charges against the Private Exhausters vide Legal Gazette Notice No. 12825 issued on 4^th October 2024.
6. An order awarding costs of the Petition to the Petitioners.
7. Any other and further orders, writs and directions this court considers appropriate and just to grant for the purpose of the enforcement of the Petitioner Members fundamental rights and freedoms; the enforcement and defence of the Constitution pursuant to Article 23(3) of the Constitution.
8. Costs of and incidental to this Petition.
9. The present Petition was duly served on the Respondents who opposed the same through a Replying Affidavit dated 17^th July, 2025.
10. Parties were then directed to file their written submissions in support of their positions in the present Petition.
11. The Court upon perusal of the pleadings and the submissions by the parties noted that the issues in the present Petition fall squarely within the issues in ELDORET ENVIRONMENT & LAND COURT PETITION NO. E009 OF 2024.
12. Specifically, the Petitioners in the present Petition are seeking to challenge and quash the procedure applied by the 1^st and 2^nd Respondents in the review of the water and sewerage tariffs approved by the 2^nd Respondent through the Gazette Notice No. 12825 published on the 04.10.2024.
13. This Court in its judgment in ELDORET ENVIRONMENT & LAND COURT PETITION NO. E009 OF 2024 pronounced itself on the forum in which assessment of the procedural propriety undertaken by the 1^st and 2^nd Respondents leading to the publication of the Notice No. 12825 dated 04.10.2024 should be entertained.
14. The finding of this Court in ELDORET ENVIRONMENT & LAND COURT PETITION NO. E009 OF 2024 is that this Court is statutorily barred by the provisions of Section 121 of the Water Act, 2016 from evaluating the procedural propriety undertaken by the 1^st and 2^nd Respondent as the first forum.
15. It was this Court’s considered view and finding that any exercise to review the procedural propriety undertaken by the 1^st and 2^nd Respondents prior to publication of the reviewed water and sewerage tariffs must be presented to the Water Tribunal in line with Section 119 and 121 of the Water Act, 2016.
16. As such, this court hereby makes a similar finding in this present Petition and further deems the present petition to have contravened the provisions of Sections 121 of the Water Act which requires the evaluation of the procedural propriety to be undertaken by the Water Tribunal.

CONCLUSION

1. In conclusion, this court hereby makes the following orders in determination of the present Petition; -
2. THAT THE PETITION DATED 27^TH MAY, 2025 CONTRAVENES THE PROVISIONS OF SECTION 121 OF THE WATER ACT, 2016 AND IS THEREFORE STRUCK OUT.
3. THAT THE RESPONDENTS ARE AWARDED COSTS OF THE PRESENT PETITION.

DATED, SIGNED & DELIVERED Virtually at ELDORET ELC on this 17^TH SEPTEMBER 2025.

IN THE PRESENCE OF:

COURT ASSISTANT: MR. BRIAN

ADVOCATES FOR THE PETITIONERS: MR. NABASENGE

ADVOCATES FOR THE RESPONDENTS:MS.CHELIMO H/B FOR MR ONYANGO

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