1. The Ex parte Applicants filed this Judicial Review Application pursuant to Notice of Motion dated 25th June 2025, seeking the following orders:
a) This Court be pleased to grant judicial orders of Certiorari quashing the water tariff increase contemplated under Gazette Notice No. 3551 in Issue Vol. CXXVII-No. 58, dated 21st March 2025, to the effect that water tariffs for the period between 2024/2025 and 2028/2029 would be increased as particularized in the said notice.
b) This Court be pleased to grant judicial review orders of Mandamus directing the Respondents, jointly and severally, to conduct comprehensive public participation and civic education before increasing the water tariffs and/or before gazetting new water tariffs.
c) The costs of this application be provided for.
2. However, Preliminary Objections were raised by the Respondents and are coming up for determination. The 3rd Respondent’s Notice of Preliminary Objection is dated 21st October 2025 and opposes the instant application on the following grounds:
a) The entire Application is incompetent and misconceived because it offends sections 82 and 121 of the Water Act 2016.
b) This Court lacks jurisdiction to hear and determine the instant application because it violates Sections 82 and 121 of the Water Act, 2016.
c) The instant application is therefore premature, an abuse of the court process, and vexatious and frivolous.
3. The 3rd Respondent prays that the entire Application be dismissed with costs and that the applicant be ordered to lodge their complaint before the proper forum as provided by law.
4. The 1st and 2nd Respondents raised a preliminary objection in the Replying Affidavit, sworn by Moses N. Munyi on 22nd July 2025, at paragraphs 29 and 30, which read as follows:
’29. THAT the Notice of Motion herein is fatally defective and a non-starter for the following reasons:
i. It was filed on 4th July 2025, which was outside the time frame granted by this Honourable Court on 10th June 2025.
ii. It contravenes the provisions of Order 53, rule 3 of the Civil Procedure Rules that require, in mandatory terms, that when leave has been granted, the substantive Notice of Motion shall be made within twenty-one days.
iii. The Supporting Affidavit to the Notice of Motion, sworn on 25th June 2025, contains new grounds in contravention of Order 53 rule 4(1)of the Civil Procedure Rules 2010 and ought to be struck out.
30. THAT in light of the foregoing, the 1st Respondent shall, before the hearing, raise a preliminary objection to have the entire application struck out with costs.’
The 1st and 2nd Respondents’ submissions
5. Counsel for the 1st and 2nd Respondent also filed submissions in support of their preliminary objection, contending that the ex parte Applicant failed to file and serve the substantive Notice of Motion Application within 21 days, as required by Order 53 Rule 3 of the Civil Procedure Rules. On this point, they cited and relied on the following authorities: Republic v District Land Adjudication Officer Meru South/Mara Sub counties & County Government of Tharaka Nithi Ex-parte Gladys Kainda Mbae & Another (2018) eKLR; Republic v Public Procurement Administrative Board & Another; Mer Security & Communications System Ltd/Megason Electronic & Control 1978 (JV) & Another (Interested Parties); Ex-parte Magal Security Systems Ltd/Firefox Kenya Limited (JV) (2019) eKLR; and Wilson Osolo v John Ojiambo Ochola & the Attorney General CA No. 6 Nairobi of 1995.
6. It is also highlighted that, in the circumstances of this case, the Ex parte Applicant did not move the court for an extension of time within the time allowed by law and by the court.
7. Counsel concluded by urging the Court to find the Notice of Motion dated June 25, 2025, not only fatally defective and bad in law but also lacking in merit, and to dismiss it with costs to the 1st and 2nd Respondents.
The 3rd Respondent’s written submissions
8. The 3rd Respondent filed written submissions in support of their preliminary objection and submits that this Court lacks jurisdiction to hear and determine the issues raised by the ex parte applicant. They contend that the dispute herein ought to have been subjected to the Water Tribunal established under sections 119 to 125 of the Water Act 2016. This Honorable Court is called upon to ensure the exhaustion of all alternative dispute resolution mechanisms, which is mandatory in compliance with Article 159(2)(c) of the Constitution of Kenya.
9. Counsel for the 3rd Respondent relied on the following authorities:
Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969); Owners of Motor Vessel "Lilian S" v Caltex Oil (Kenya) Limited [1989] KLR 1; and Samuel Kamau Macharia & Another v KCB & Others [2012] eKLR.
9. Counsel also cited and relied on sections 119 and 121 of the Water Act, 2016, and submitted that the Act provides a comprehensive framework for water sector management, including dispute resolution.
10. The 3rd Respondent relies on the case of Mwakazi & 67 others v Tavevo Water & Sewerage Co. & Another (Petition E010 of 2024) [2025] KЕНС 8848 (KLR), in which the Court held that the dispute squarely fell within the jurisdiction of the Water Tribunal and that filing a constitutional petition in the Environment and Land Court was a misstep.
11. Counsel also cites the doctrine of exhaustion as articulated by the Courts in the following cases: Speaker of the National Assembly v Karume [1992] eKLR; Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 others (2015) eKLR; and Bethwell Allan Omondi v Telcom (K) LTD & 9 others [2017] eKLR.
12. Regarding whether due process was followed during the 1st Respondent’s tariff review process, including public participation and fair administrative action, the 3rd Respondent submits that it ensured public participation in accordance with Articles 10 of the Constitution and Section 139 of the Water Act. Therefore, the Ex parte Applicant's claims of procedural deficiencies are unfounded. The 3rd Respondent duly published notices for the public consultation in line with the provisions of the Constitution, the Water Act 2016, and government policy on the centralization of public sector advertising, in the MyGov publication and in an insert in the Star Newspaper, which is circulated nationwide. Additionally, notices were broadcast on Kenya Broadcasting Corporation (KBC) Coro FM Radio in vernacular (Kikuyu).
13. The 3rd Respondent relied on the holding in Mui Coal Basin Local Community & 17 others v Permanent Secretary Ministry of Energy & 15 others [2015] eKLR, where the Court observed that public participation did not require everyone to express their views, which would be impracticable.
14. Thus, their submission is that this Court lacks jurisdiction to determine the application as filed by the Ex parte applicant.
The Ex parte Applicant’s submissions
15. The Ex parte applicant responded to the Respondents’ preliminary objections through written submissions. His counsel on record argued that filing a complaint against the 1st Respondent through the 3rd Respondent under section 82 of the Water Act offends the rules of natural justice, namely that no man shall be judge in his own cause, because the increase in water tariffs was a joint venture among all three Respondents, particularly the 3rd Respondent.
16. It was highlighted that the Ex parte Applicant, upon consideration of the above-cited reasons and on the advice of counsel, filed a matter with the Water Tribunal, Tribunal Case: E001 of 2025, dated 12th March 2025. However, upon filing the case, the Water Tribunal issued a notice dated 14th January 2025 stating that it was not properly constituted because there was no chairperson as contemplated under the Water Act, since the previous chairman's term had lapsed.
17. Their argument against the 3rd Respondent’s Preliminary Objection is that the Ex parte Applicant has exhausted all other avenues before filing the present suit; hence, their application is neither immature nor misconceived. Counsel relied on the exceptions to the doctrine of exhaustion highlighted in the case of Olaly & another v Duba & 3 others; Registrar of Societies (Interested Party) (Constitutional Petition E434 of 2020) [2023] KEHC 1125 (KLR).
18. About the late filing of the substantive motion required of the ex parte Applicant, which was required to be filed by the 1st day of July 2025 but was admittedly filed on 4th July 2025, three days late. The Ex parte Applicant explained that the ongoing Gen-Z protest occasioned the delay. As such, the deponent could not travel to sign the requisite supporting affidavit until the 3rd of July 2025, as deposed in the Ex parte Applicant’s Replying affidavit dated 30th October 2025.
19. Counsel for the Ex parte Applicant concluded that the delay was not in any way inexcusable or inordinate, as it was only three days. As such, a case of this magnitude and public interest ought not to be dismissed for three days of delay, as it would result in an injustice.
Analysis and determination
20. To ascertain the matters at hand, I consider whether the preliminary objections are sustainable, whether the substantive motion for judicial review orders was filed within the required 21-day period, whether the application contravenes the doctrine of exhaustion given that the Water Act provides a dispute resolution mechanism, and who should bear the costs of the litigation arising therefrom.
21. The law on preliminary objections has been firmly established in the now-famous case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. [1969] E.A. 696. The Court then held that:
“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary objection. A preliminary Objection is in the nature of what used to be a demurer 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 in the exercise of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.”
22. Addressing the 1st and 2nd Respondents’ objection that the substantive application was filed after the order, I will quote Order 53 rule 3(1) of the Civil Procedure Rules, which provides that:
“When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.”
23. This Court granted leave to the Ex parte Applicant to file the substantive notice of motion on June 10, 2025. The Ex parte Applicant ought to have filed their application by July 31, 2025, but instead filed it on June 4, 2025. I also note that the Ex parte Applicant did not seek leave to extend the time to file the application out of time.
24. Angote J, in the case of Republic v Kahindi Nyafula & 3 others, Ex Parte Kilifi South East Farmers Co-Operative [2014] eKLR, found that:
“The law provides that the substantive Motion seeking prerogative orders must be filed within 21 days. The Law Reform Act, which is the substantive law dealing with prerogative orders, does not provide for the enlargement of time within which a party should file the Motion. In the case of AKO -vs- Special District Commissioner Kisumu & Another (1959) KLR 163, the Court of Appeal held as follows:
“The Prohibition is statutory and absolute and is not therefore challengeable under procedural provisions of the Civil Procedure Rules, more specifically order 49 Rule 5 (now order 50 Rule 6) which makes provision for the enlargement of time.”
25. The 1st and 2nd Respondents relied on the authority of Republic v Public Procurement Administrative Review Board & another; Mer Security & Communications System Ltd/Megason Electronics & Control 1978 (JV) & another (Interested Parties); Exparte Magal Security Systems Ltd/Firefox Kenya Limited (JV) [2019] KEHC 11019 (KLR), in which Mativo J (as he then was) held that:
“Access to justice is both ways. A party cannot disobey a court order as in this case, and claim right to access justice after flouting both an express statutory provision and a binding court order. ‘Discretion’ signifies a number of different legal concepts. Here the order is discretionary because it depends on the application of a very general standard— what is ‘just and equitable’ — which calls for an overall assessment in the light of the factors mentioned in the Constitution or a statutory provision, each of which in turn calls for an assessment of circumstances……There is nothing arbitrary or capricious about exercising a discretion in order to give effect to an express statutory provision and more so, when the provision is couched in mandatory terms as in the present case.
26. The Learned Judge went on to determine as follows:
“In conclusion, it is my finding that the provisions discussed above are couched in mandatory terms and must be complied with. Further, Order 50 Rule 6 which permits for extension of time being a subsidiary legislation cannot override the provisions of sections 8 and 9 of the Law Reform Act.”
27. However, there is a different school of thought that challenges this rigid position, as expressed in the case of Republic v Speaker of Nairobi City County Assembly & another Ex parte Evans Kidero [2017] eKLR, where the court emphasized that it should ensure that justice is served through the invocation of its inherent powers. The court stated thus;
“…that even if there was no specific provision for enlargement of time in a procedural rule like Order 53 Rule 3 of the Civil Procedure Rules, what this court needs to satisfy itself is that there is no demonstrable prejudice caused to the adverse party because of delay and whether refusal to enlarge time would occasion hardship and resulting an injustice to the applicant. In so doing, this court’s inherent discretion is not fettered to ensure that justice is done to the parties since there is no prohibition for enlargement of time and in the absence of a specific prohibition by the Rules Committee, the court infers that the Civil Procedure Rules were not meant or intended to preclude meritorious claims’’
28. However, in this case, the Applicant chose not to seek an extension of time, and thus neither Article 159 of the Constitution nor the oxygen principle can be applied.
29. It is therefore my view that the 1st and 2nd Respondents’ preliminary objection ought to be upheld and that the notice of motion dated 25th June 2025 ought to be struck out.
30. The 3rd Respondent argues that the Applicant failed to exhaust all available remedies for resolving the dispute under the Water Act, Cap 372. The Act provides as follows in Section 82:
“A party aggrieved by the decision of a water services provider may appeal against the decision to the Regulatory Board in the prescribed manner within fourteen days from the date the decision was made.(2)The Regulatory Board may on appeal either vary, reverse or confirm the decision of the water service provider, and the Regulatory Board shall communicate its decision to the parties concerned within fourteen days from the time the decision is made.”
31. Further, Section 121 thereof provides that:
“(1) 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.
(2) 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.”
32. Legal authorities abound that hold that where there exists another adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process. This was well set out in the case of Speaker of the National Assembly v James Njenga Karume [1992] eKLR, where the Court of Appeal held that:
“… In our view, there is considerable merit in the submission that 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. We observed without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions....”
33. In this case, the Ex parte Applicant, as annexed to their application, demonstrated that they filed a case before the Water Tribunal, which has yet to be heard because the Tribunal did not have a Chair at the time (see notice dated January 14, 2025). The position has long since changed, and the Tribunal now has a Chairman and is functional (see Gazette Notice No. 8504 dated June 24, 2025).
34. Since there is a procedure outlined under the Water Act, which is the legally provided-for mechanism for resolving disputes concerning the provision of water services, it ought to be pursued to finality before addressing the matter before the ELC, which is contemplated as an appellate Court under Section 124 of the Act:
“A person aggrieved by a decision of the Tribunal may, within twenty-one days from the date of that decision, appeal to the Land and Environmental Court, established under article 162(2) of the Constitution, on an issue of law.”
35. Consequently, the POs raised by the Respondents on July 22, 2025, and October 21, 2025, are allowed, and the JR application dated June 25, 2025, is hereby struck out with costs.
Dated, signed, and delivered electronically in Nyeri on this 30th day of April, 2026.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Mbau for Applicant
Ms. Achieng H/B for Mr. Kamotho for the 1st and 2nd Respondent
Mr. Kibet for the 3rd Respondent
Kendi: Court Assistant
a) This Court be pleased to grant judicial orders of Certiorari quashing the water tariff increase contemplated under Gazette Notice No. 3551 in Issue Vol. CXXVII-No. 58, dated 21st March 2025, to the effect that water tariffs for the period between 2024/2025 and 2028/2029 would be increased as particularized in the said notice.
b) This Court be pleased to grant judicial review orders of Mandamus directing the Respondents, jointly and severally, to conduct comprehensive public participation and civic education before increasing the water tariffs and/or before gazetting new water tariffs.
c) The costs of this application be provided for.
2. However, Preliminary Objections were raised by the Respondents and are coming up for determination. The 3rd Respondent’s Notice of Preliminary Objection is dated 21st October 2025 and opposes the instant application on the following grounds:
a) The entire Application is incompetent and misconceived because it offends sections 82 and 121 of the Water Act 2016.
b) This Court lacks jurisdiction to hear and determine the instant application because it violates Sections 82 and 121 of the Water Act, 2016.
c) The instant application is therefore premature, an abuse of the court process, and vexatious and frivolous.
3. The 3rd Respondent prays that the entire Application be dismissed with costs and that the applicant be ordered to lodge their complaint before the proper forum as provided by law.
4. The 1st and 2nd Respondents raised a preliminary objection in the Replying Affidavit, sworn by Moses N. Munyi on 22nd July 2025, at paragraphs 29 and 30, which read as follows:
’29. THAT the Notice of Motion herein is fatally defective and a non-starter for the following reasons:
i. It was filed on 4th July 2025, which was outside the time frame granted by this Honourable Court on 10th June 2025.
ii. It contravenes the provisions of Order 53, rule 3 of the Civil Procedure Rules that require, in mandatory terms, that when leave has been granted, the substantive Notice of Motion shall be made within twenty-one days.
iii. The Supporting Affidavit to the Notice of Motion, sworn on 25th June 2025, contains new grounds in contravention of Order 53 rule 4(1)of the Civil Procedure Rules 2010 and ought to be struck out.
30. THAT in light of the foregoing, the 1st Respondent shall, before the hearing, raise a preliminary objection to have the entire application struck out with costs.’
The 1st and 2nd Respondents’ submissions
5. Counsel for the 1st and 2nd Respondent also filed submissions in support of their preliminary objection, contending that the ex parte Applicant failed to file and serve the substantive Notice of Motion Application within 21 days, as required by Order 53 Rule 3 of the Civil Procedure Rules. On this point, they cited and relied on the following authorities: Republic v District Land Adjudication Officer Meru South/Mara Sub counties & County Government of Tharaka Nithi Ex-parte Gladys Kainda Mbae & Another (2018) eKLR; Republic v Public Procurement Administrative Board & Another; Mer Security & Communications System Ltd/Megason Electronic & Control 1978 (JV) & Another (Interested Parties); Ex-parte Magal Security Systems Ltd/Firefox Kenya Limited (JV) (2019) eKLR; and Wilson Osolo v John Ojiambo Ochola & the Attorney General CA No. 6 Nairobi of 1995.
6. It is also highlighted that, in the circumstances of this case, the Ex parte Applicant did not move the court for an extension of time within the time allowed by law and by the court.
7. Counsel concluded by urging the Court to find the Notice of Motion dated June 25, 2025, not only fatally defective and bad in law but also lacking in merit, and to dismiss it with costs to the 1st and 2nd Respondents.
The 3rd Respondent’s written submissions
8. The 3rd Respondent filed written submissions in support of their preliminary objection and submits that this Court lacks jurisdiction to hear and determine the issues raised by the ex parte applicant. They contend that the dispute herein ought to have been subjected to the Water Tribunal established under sections 119 to 125 of the Water Act 2016. This Honorable Court is called upon to ensure the exhaustion of all alternative dispute resolution mechanisms, which is mandatory in compliance with Article 159(2)(c) of the Constitution of Kenya.
9. Counsel for the 3rd Respondent relied on the following authorities:
Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969); Owners of Motor Vessel "Lilian S" v Caltex Oil (Kenya) Limited [1989] KLR 1; and Samuel Kamau Macharia & Another v KCB & Others [2012] eKLR.
9. Counsel also cited and relied on sections 119 and 121 of the Water Act, 2016, and submitted that the Act provides a comprehensive framework for water sector management, including dispute resolution.
10. The 3rd Respondent relies on the case of Mwakazi & 67 others v Tavevo Water & Sewerage Co. & Another (Petition E010 of 2024) [2025] KЕНС 8848 (KLR), in which the Court held that the dispute squarely fell within the jurisdiction of the Water Tribunal and that filing a constitutional petition in the Environment and Land Court was a misstep.
11. Counsel also cites the doctrine of exhaustion as articulated by the Courts in the following cases: Speaker of the National Assembly v Karume [1992] eKLR; Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 others (2015) eKLR; and Bethwell Allan Omondi v Telcom (K) LTD & 9 others [2017] eKLR.
12. Regarding whether due process was followed during the 1st Respondent’s tariff review process, including public participation and fair administrative action, the 3rd Respondent submits that it ensured public participation in accordance with Articles 10 of the Constitution and Section 139 of the Water Act. Therefore, the Ex parte Applicant's claims of procedural deficiencies are unfounded. The 3rd Respondent duly published notices for the public consultation in line with the provisions of the Constitution, the Water Act 2016, and government policy on the centralization of public sector advertising, in the MyGov publication and in an insert in the Star Newspaper, which is circulated nationwide. Additionally, notices were broadcast on Kenya Broadcasting Corporation (KBC) Coro FM Radio in vernacular (Kikuyu).
13. The 3rd Respondent relied on the holding in Mui Coal Basin Local Community & 17 others v Permanent Secretary Ministry of Energy & 15 others [2015] eKLR, where the Court observed that public participation did not require everyone to express their views, which would be impracticable.
14. Thus, their submission is that this Court lacks jurisdiction to determine the application as filed by the Ex parte applicant.
The Ex parte Applicant’s submissions
15. The Ex parte applicant responded to the Respondents’ preliminary objections through written submissions. His counsel on record argued that filing a complaint against the 1st Respondent through the 3rd Respondent under section 82 of the Water Act offends the rules of natural justice, namely that no man shall be judge in his own cause, because the increase in water tariffs was a joint venture among all three Respondents, particularly the 3rd Respondent.
16. It was highlighted that the Ex parte Applicant, upon consideration of the above-cited reasons and on the advice of counsel, filed a matter with the Water Tribunal, Tribunal Case: E001 of 2025, dated 12th March 2025. However, upon filing the case, the Water Tribunal issued a notice dated 14th January 2025 stating that it was not properly constituted because there was no chairperson as contemplated under the Water Act, since the previous chairman's term had lapsed.
17. Their argument against the 3rd Respondent’s Preliminary Objection is that the Ex parte Applicant has exhausted all other avenues before filing the present suit; hence, their application is neither immature nor misconceived. Counsel relied on the exceptions to the doctrine of exhaustion highlighted in the case of Olaly & another v Duba & 3 others; Registrar of Societies (Interested Party) (Constitutional Petition E434 of 2020) [2023] KEHC 1125 (KLR).
18. About the late filing of the substantive motion required of the ex parte Applicant, which was required to be filed by the 1st day of July 2025 but was admittedly filed on 4th July 2025, three days late. The Ex parte Applicant explained that the ongoing Gen-Z protest occasioned the delay. As such, the deponent could not travel to sign the requisite supporting affidavit until the 3rd of July 2025, as deposed in the Ex parte Applicant’s Replying affidavit dated 30th October 2025.
19. Counsel for the Ex parte Applicant concluded that the delay was not in any way inexcusable or inordinate, as it was only three days. As such, a case of this magnitude and public interest ought not to be dismissed for three days of delay, as it would result in an injustice.
Analysis and determination
20. To ascertain the matters at hand, I consider whether the preliminary objections are sustainable, whether the substantive motion for judicial review orders was filed within the required 21-day period, whether the application contravenes the doctrine of exhaustion given that the Water Act provides a dispute resolution mechanism, and who should bear the costs of the litigation arising therefrom.
21. The law on preliminary objections has been firmly established in the now-famous case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. [1969] E.A. 696. The Court then held that:
“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary objection. A preliminary Objection is in the nature of what used to be a demurer 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 in the exercise of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.”
22. Addressing the 1st and 2nd Respondents’ objection that the substantive application was filed after the order, I will quote Order 53 rule 3(1) of the Civil Procedure Rules, which provides that:
“When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.”
23. This Court granted leave to the Ex parte Applicant to file the substantive notice of motion on June 10, 2025. The Ex parte Applicant ought to have filed their application by July 31, 2025, but instead filed it on June 4, 2025. I also note that the Ex parte Applicant did not seek leave to extend the time to file the application out of time.
24. Angote J, in the case of Republic v Kahindi Nyafula & 3 others, Ex Parte Kilifi South East Farmers Co-Operative [2014] eKLR, found that:
“The law provides that the substantive Motion seeking prerogative orders must be filed within 21 days. The Law Reform Act, which is the substantive law dealing with prerogative orders, does not provide for the enlargement of time within which a party should file the Motion. In the case of AKO -vs- Special District Commissioner Kisumu & Another (1959) KLR 163, the Court of Appeal held as follows:
“The Prohibition is statutory and absolute and is not therefore challengeable under procedural provisions of the Civil Procedure Rules, more specifically order 49 Rule 5 (now order 50 Rule 6) which makes provision for the enlargement of time.”
25. The 1st and 2nd Respondents relied on the authority of Republic v Public Procurement Administrative Review Board & another; Mer Security & Communications System Ltd/Megason Electronics & Control 1978 (JV) & another (Interested Parties); Exparte Magal Security Systems Ltd/Firefox Kenya Limited (JV) [2019] KEHC 11019 (KLR), in which Mativo J (as he then was) held that:
“Access to justice is both ways. A party cannot disobey a court order as in this case, and claim right to access justice after flouting both an express statutory provision and a binding court order. ‘Discretion’ signifies a number of different legal concepts. Here the order is discretionary because it depends on the application of a very general standard— what is ‘just and equitable’ — which calls for an overall assessment in the light of the factors mentioned in the Constitution or a statutory provision, each of which in turn calls for an assessment of circumstances……There is nothing arbitrary or capricious about exercising a discretion in order to give effect to an express statutory provision and more so, when the provision is couched in mandatory terms as in the present case.
26. The Learned Judge went on to determine as follows:
“In conclusion, it is my finding that the provisions discussed above are couched in mandatory terms and must be complied with. Further, Order 50 Rule 6 which permits for extension of time being a subsidiary legislation cannot override the provisions of sections 8 and 9 of the Law Reform Act.”
27. However, there is a different school of thought that challenges this rigid position, as expressed in the case of Republic v Speaker of Nairobi City County Assembly & another Ex parte Evans Kidero [2017] eKLR, where the court emphasized that it should ensure that justice is served through the invocation of its inherent powers. The court stated thus;
“…that even if there was no specific provision for enlargement of time in a procedural rule like Order 53 Rule 3 of the Civil Procedure Rules, what this court needs to satisfy itself is that there is no demonstrable prejudice caused to the adverse party because of delay and whether refusal to enlarge time would occasion hardship and resulting an injustice to the applicant. In so doing, this court’s inherent discretion is not fettered to ensure that justice is done to the parties since there is no prohibition for enlargement of time and in the absence of a specific prohibition by the Rules Committee, the court infers that the Civil Procedure Rules were not meant or intended to preclude meritorious claims’’
28. However, in this case, the Applicant chose not to seek an extension of time, and thus neither Article 159 of the Constitution nor the oxygen principle can be applied.
29. It is therefore my view that the 1st and 2nd Respondents’ preliminary objection ought to be upheld and that the notice of motion dated 25th June 2025 ought to be struck out.
30. The 3rd Respondent argues that the Applicant failed to exhaust all available remedies for resolving the dispute under the Water Act, Cap 372. The Act provides as follows in Section 82:
“A party aggrieved by the decision of a water services provider may appeal against the decision to the Regulatory Board in the prescribed manner within fourteen days from the date the decision was made.(2)The Regulatory Board may on appeal either vary, reverse or confirm the decision of the water service provider, and the Regulatory Board shall communicate its decision to the parties concerned within fourteen days from the time the decision is made.”
31. Further, Section 121 thereof provides that:
“(1) 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.
(2) 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.”
32. Legal authorities abound that hold that where there exists another adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process. This was well set out in the case of Speaker of the National Assembly v James Njenga Karume [1992] eKLR, where the Court of Appeal held that:
“… In our view, there is considerable merit in the submission that 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. We observed without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions....”
33. In this case, the Ex parte Applicant, as annexed to their application, demonstrated that they filed a case before the Water Tribunal, which has yet to be heard because the Tribunal did not have a Chair at the time (see notice dated January 14, 2025). The position has long since changed, and the Tribunal now has a Chairman and is functional (see Gazette Notice No. 8504 dated June 24, 2025).
34. Since there is a procedure outlined under the Water Act, which is the legally provided-for mechanism for resolving disputes concerning the provision of water services, it ought to be pursued to finality before addressing the matter before the ELC, which is contemplated as an appellate Court under Section 124 of the Act:
“A person aggrieved by a decision of the Tribunal may, within twenty-one days from the date of that decision, appeal to the Land and Environmental Court, established under article 162(2) of the Constitution, on an issue of law.”
35. Consequently, the POs raised by the Respondents on July 22, 2025, and October 21, 2025, are allowed, and the JR application dated June 25, 2025, is hereby struck out with costs.
Dated, signed, and delivered electronically in Nyeri on this 30th day of April, 2026.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Mbau for Applicant
Ms. Achieng H/B for Mr. Kamotho for the 1st and 2nd Respondent
Mr. Kibet for the 3rd Respondent
Kendi: Court Assistant