The ruling herein relates to Notice of Preliminary Objections dated 28 April 2025 filed by the 1st and 2nd interested parties, Mombasa County Public Service Board and Sanitation Company Limited, together with Abdirahim Mohamed Farah. The objections are that;
The petition and the application dated 3 April 2025 be dismissed in limine on the following grounds;
- The entire petition and application are bad as they offend sections 82 and 121 of the Water Act, 2016.
- The court lacks jurisdiction to hear and determine the instant matter as it offends the provisions of sections 82 and 121 of the Water Act, 2016.
- The entire petition is not only fatally defective and amounts to an abuse of the court process and ought to be dismissed with costs.
The interested parties submitted that the petitioner is challenging the 1st respondent’s decision to renew the contract of the 2nd interested party as the managing director. The respondents have no statutory mandate to appoint any person to serve as the managing director of the 1st interested party. The petition is premised on the alleged issuance of a contract; hence, the structural relationship between the 1st interested party and the 2nd respondent is that of agency. The 2nd respondent is mandated to fulfil the County Government''s constitutional obligations under paragraph 10(b) of the constitution, which requires offering water and sanitation services.
The court lacks jurisdiction to hear and determine the instant petition as the petitioner has not exhausted the alternative dispute resolution mechanism under section 82(1) and 121(2) of the Water Act. A party aggrieved by the decision of a water services provider can appeal to the Water Services Regulatory Board within 14 days. The Water Tribunal has jurisdiction to hear the matter. In this case, the petitioner is before the wrong forum, which denies the court the necessary jurisdiction to hear and determine the matter.
The interested parties relied on the following cases: William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & others [2020] eKLR; Speaker of National Assembly v Njenga Karume [1992] 1 KLR.
The interested parties also submitted that the petition contravenes the doctrine of constitutional avoidance. In the case of Ibrahim v Global Initiative Against Transnational Organised Crime & another [2022] eKLR, the court held that the doctrine of constitutional avoidance entails that a court will not determine a constitutional issue when a matter may properly be decided on another basis. In the case of Nairobi County Government v Kenya Power and Lighting Company Limited [2018] eKLR, the court held that when it is possible to resolve a case without addressing a constitutional issue, it should be done. A constitutional question is an issue whose resolution requires the interpretation of a constitution rather than that of a statute.
In this case, the petitioner has invoked the wrong route of a petition, which denies the court jurisdiction.
The petitioner submitted that section 82 of the Water Act states that a party aggrieved by a decision of a water service provider, such as the interested parties, may appeal to the Regulatory Board, the 3rd respondent. The petitioner has not been aggrieved by the decision of the 1st interested party, warranting an appeal to the 3rd respondent.
Section 121 of the Water Act provides for the jurisdiction of the Water Appeals Tribunal. In this case, the petitioner has not pleaded that he is aggrieved by any decision made by the Cabinet Secretary, the Water Resources Authority or WASREB. Hence, he cannot lodge his grievances with either WASREB or the Water Tribunal.
The petitioner is dissatisfied with the decision of the 1st respondent dated 7 March 2025, which purports to renew the contract of the 2nd interested party as the Managing Director of Mombasa Water Supply and Sanitation Company Limited for a further 3 years, effective from 6 March 2025, when his contract term had expired. Section 82 of the Water Act grants the right of appeal to the Regulatory Board to any party aggrieved by the actions of a water service provider. The petitioner is challenging the decision of the Water County Public Service Board to renew the contract of the 1st interested party.
This is an employment dispute, not a complaint arising from the provision of water delivery service. The primary purpose of Section 82 of the Water Act is to regulate the physical use and delivery of water resources, rather than addressing internal employment or governance decisions.
Section 121 of the Water Act is inapplicable in this case. The petitioner is challenging the lawfulness of the renewal of the managing director’s contract. This is a matter that constitutes an employment dispute and is not under the jurisdiction of the Water Tribunal.
In the case of Murang’a County Government v Murang’a South Water & Sanitation Co. Ltd & another [2019] eKLR, the court held that an appeal against the decision or order of the Cabinet Secretary, the Authority and Regulatory Board, or any person acting under their authority is different from a case where a petitioner is seeking the interpretation of the constitution by the court.
In this case, the petitioner seeks a declaration that the 1st respondent’s decision to renew the term of the 2nd interested party as the 1st interested party''s managing director through a letter dated 7 March 2025 is contrary to Articles 10(2), 47(1), 73, and 232 of the Constitution. Such a matter can only be addressed by the court and not the Water Tribunal. In the case of Siele v County Secretary, Kericho County & 2 others, Petition No. E005 of 2023, a preliminary objection was raised on the basis that the court lacked jurisdiction to hear a matter in light of sections 82 and 121 of the Water Act. The court held that the matter relates to the employment status of the claimant and the court had jurisdiction under Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act.
In Mulemi v Angwenya & another Civil Appeal 170 of 2016, the court defined a preliminary objection to be:
- It must be a pure point of law.
- It must have been pleaded.
- Alternatively, it may also arise by clear implication out of pleadings if not specifically pleaded.
- If argued as a pure point of law, it may dispose of the suit.
- It must be argued on the assumption that all facts pleaded by the opposite party are correct; it cannot succeed if any fact has to be ascertained, or if what is sought is the exercise of the court’s discretion.
The objections by the interested party have failed to meet this threshold. The provisions of sections 82 and 121 of the Water Act do not apply in this case. The objections should be dismissed to allow the court to hear the main petition.
Determination
Section 82 of the Water Act provides:
82. Appeals to the Regulatory Board
(1)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.
The petitioner is challenging the 1st respondent’s decision to renew the employment contract of the 1st interested party as the managing director. The petitioner acknowledges that, under Article 72 of the Mombasa Supply and Sanitation Company Ltd, the Board of Directors has the sole power to appoint the managing director through a competitive process, which involves advertising.
The Mombasa County Public Service Board took the decision challenged by the petitioner, the 1st respondent, regarding the employment of the 1st interested party.
Section 82 of the Water Act pertains to the decisions of a water resource authority in matters related to water resources. Whereas the Water Act allows a party aggrieved by the decision of a water service provider to appeal to the Regulatory Authority, such a matter must relate to the provision of a water service.
The issue of employees of a water authority is not considered a water service provision under the Water Act. Such must relate to terms and conditions of service over which the court has exclusive jurisdiction under Article 162(2) (a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act.
Similar objections as raised herein were addressed by the court in Adan & 2 others (Suing on their behalf and on behalf of 76 other aggrieved employees of the respondent) v Wajir Wasco Limited alias Wajir Water & Sewerage Company Limited & another [2023] KEELRC 1243 (KLR). On the application of section 82 of the Water Act, the court held that:
… appealable decisions of the water service provider relate to its core functions under section 72 of the Water Act. The decisions relate to water resources or services where there is a business contract and the decisions of issuance or denial of water licence, revocation of water licence, disconnection of water supply and such other decisions. Under section 124 of the Act subsequent appeals go to the Environment and Land Court and not the Employment and Labour Relations Court.
This position is reiterated in the case of Kenya County Workers Union v Bomet Water and Sanitation Company Limited [2022] KEELRC 12999 (KLR).
Inherently, the Water Act is concerned with the regulation, management and development of water resources, water and sewerage services, and for other connected purposes. The Water Act is not concerned with the employment terms and conditions of the employees of a body such as the 1st respondent or 1st interested party.
On matters addressed by the petitioner, the court has exclusive jurisdiction. Section 82 of the Water Act does not apply. This was the gist of the decision in Siele v County Secretary, Kericho County & 3 others [2023] KEELRC 3379 (KLR) as submitted by the petitioner. The employment of the 2nd interested party cannot be under the Water Act; any challenge to his employment is a matter to be addressed by the court.
On section 121 of the Water Act, which relates to the jurisdiction of the Water Tribunal, on the findings above with regard to the application of Section 82 of the Water Act, such matters and objections are not relevant. This is aptly captured in Siele v County Secretary, Kericho County & 3 others [2023] KEELRC 3379 (KLR) that:
… sections 82 and 121 of the Water Act 2016 and relevance to this petition is generally misplaced and completely irrelevant because the said Act and particular sections apply to customers who have been aggrieved by water service providers in provision of water services to appeal to the Water Tribunal. He maintained that the current petition is purely a labour dispute and is specifically focused on the abuse of powers by the majority shareholders of the petitioner’s employer. Therefore, the whole point raised herein is irrelevant as the water tribunal has no jurisdiction over employment disputes.
In the case of Okumu & 8 others v Badi, Director General Nairobi Metropolitan Services & 15 others; Nairobi City County & 12 others (Interested Parties); Okoiti (Exparte) [2022] KEELRC 1 (KLR), the court emphasised that all disputes relating to an employee, employer and including employment relations and for connected purposes fall under the jurisdiction of the court.
Accordingly, invoking the provisions of sections 82 and 121 of the Water Act in this case does not apply. The objections dated 28 April 2025 are without merit and are hereby dismissed with costs to the petitioner.
Delivered in open court at Mombasa, this 21st day of October 2025.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet
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