The consent or authorization of the relevant County Government is necessary in matters involving provision of water and sanitation services.

Murang’a County Government v Murang’a South Water & Sanitation Co. Ltd & another

Constitutional Petition 16 of 2019

High Court at Murang'a

K Kimondo, J

October 29, 2019

Reported by Beryl Ikamari

Jurisdiction - jurisdiction of the Water Tribunal - dispute involving water and sanitation services - where the dispute was not an appeal under the Water Act or a contractual dispute relating to water resources or water services - whether the Water Tribunal had jurisdiction in relation to the dispute - Water Act, No 43 of 2016, section 121.

Civil Practice and Procedure - institution of suits - doctrine of sub judice - claim that issues raised in a suit were the same issues being litigated by the parties in prior pending suits - whether the doctrine of sub judice was applicable - Civil Procedure Act (Cap 21), section 6.

Statutes - subsidiary legislation - publication of a gazette notice - claim that the consent of a county government in relation to a decision contained in a gazette notice was not sought - where the decision related to a hike in tariffs for water and sanitation services that were a function within the exclusive competence of a county government - whether gazette notice No. 4805 of May 23, 2019, which related to a tariff hike for water and sanitation services within parts of Murang'a County, was lawful - County Governments Act, No 17 of 2012, section 120; Constitution of Kenya 2010, article 174, 175, 186, 187 & part 2 section 11 of the Fourth Schedule.

Brief facts

The 1^st respondent published gazette notice No. 4805 on May 23, 2019 which sought to hike water tariffs in the sub-counties of Murang’a South, Kigumo and Kandara. The petitioner challenged that decision. It stated that the decision was illegitimate and that it was done with the collusion of the 2^nd respondent (Water Services Regulatory Board -WASREB) in a manner that usurped the functions of the petitioner.

The petitioner said that water and sanitation services were a devolved function within the exclusive mandate of the County Government. The petitioner added that without its authorisation the 1^st respondent had no mandate to provide water and sanitation services. The petitioner also contended that sections 72, 74, 77, 85 & 86 of the Water Act which gave the 2^nd respondent powers to supervise and licence water service providers and approve water tariffs were inconsistent with article 186 as read with section 11(b) of part 2 of the Fourth Schedule to the Constitution. The petitioner sought various orders including orders of certiorari to quash the impugned gazette notice and an injunction to stop the 1^st respondent from providing water services or reviewing water tariffs without its express authority.

The 1^st respondent raised two objections to the petition. First, that the proper forum for the dispute was the Water Tribunal established under section 121 of the Water Act and secondly, that the matter was sub judice in light of pending cases. Both respondents objected to the petition on grounds that it was imprecise in terms of how the claim and the alleged constitutional violations were set out.

Issues

1. When would the Water Tribunal have jurisdiction in relation to a dispute involving water and sanitation services?
2. What were the circumstances under which the doctrine of sub judice would be applicable?
3. Whether the process that led to the publication of gazette notice No. 4805 of May 23, 2019, which was about a tariff hike for water and sanitation services within parts of Murang'a County, was lawful.

Held

1. Under section 121 of the Water Act, the jurisdiction of the Water Tribunal related to an appeal against the decision or order of the relevant Cabinet Secretary, the Authority and Regulatory Board or of any person acting under their authority. The Water Tribunal also had jurisdiction where a dispute concerning water resources or water services stemmed from a business contract and the parties had not agreed to an alternative dispute resolution mechanism. The dispute between the parties was not an appeal or a contractual dispute contemplated under section 121 of the Water Act. The petition sought the interpretation of the Constitution and some reliefs it sought were capable of being granted only by the court. Therefore, the Water Tribunal was not the proper dispute resolution forum for the parties and the dispute was properly before the court.
2. The dispute was not between the two levels of government and it was therefore outside the purview of article 189 of the Constitution or the mechanisms of the Intergovernmental Relations Act. Therefore the court had jurisdiction to handle the dispute.
3. Section 6 of the Civil Procedure Act provided for the doctrine of sub judice. Under the doctrine, proceedings would not continue where the matter in issue was also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claimed, litigating under the same title, where such suit or proceeding was pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
4. A number of issues in the petition were sub judice. Prayers (i), (ii), (iii), (iv), (v) and (ix) were largely the subject of at least two prior and pending suits. Namely Kahuti Water Sanitation Co. Ltd & others v Governor Murang’a & others, Murang’a Judicial Review 5 of 2017 and Mercy Kimwe & 2 others v Governor Murang’a County & others, Murang’a Constitutional Petition 55 of 2018. Therefore, the court would not make determinations relating to prayers (i), (ii), (iii), (iv), (v) and (ix).
5. The petition raised a new issue that was not sub judice. It related to whether the respondents acted lawfully in commencing the Regular Tariff Adjustment or review under gazette notice No. 4805 of May 23, 2019 and whether the reliefs of certiorari and a permanent injunction should issue against the notice.
6. Section 120 of the County Governments Act provided for tariffs and pricing of public services. The power to provide for tariffs or pricing was vested in a county government or any agency delivering services in the county. The tariffs were meant to finance operations, ensure sustainability of the resource, maintain the assets, carry out repairs on aged infrastructure and extend services to new areas.
7. The 2^nd respondent received a Regular Tariff Adjustment proposal from the 1^st respondent and advised it to carry out public participation. Its guidelines on the exercise were followed by the 1^st respondent.
8. Under sections 154 and 156 of the Water Act, 2016, water services providers existing under the repealed Water Act, such as the 1^st respondent, were to continue to operate as the county water services providers or cross county water services providers for a limited period.
9. Under article 187 of the Constitution as read with part 2 section 11 of the Fourth Schedule to the Constitution, water and sanitation services were a devolved function within the competence of county governments. In light of those constitutional provisions, it was doubtful that the 2^nd respondent could approve water and sewerage tariffs in the county without consulting and seeking the consent of the County Government. Any other interpretation would defeat the objects and principles of devolution decreed under articles 174 and 175 of the Constitution.
10. The 1^st respondent's implementation of the Regular Tariffs Adjustment had a shaky legal and constitutional foundation. The participation of the County Executive Committee Members or Members of the County Assembly at stakeholder meetings which culminated in the review of the tariffs did not mean that the consent of the County Government had been sought. Such a tariff hike was only possible where there was express authority or consent of the County Government.

Petition partly allowed.

Orders:-

1. A declaration that the Regular Tariff Adjustment by the 1^st respondent vide Kenya gazette notice No. 4805 of May 23, 2019 without the consent of the petitioner was illegal null and void.
2. An order of certiorari for purposes of quashing the decision of the 1^st and 2^nd respondents to commence the tariff review or adjustment.
3. An order of certiorari for purposes of quashing Kenya gazette notice No. 4805 dated May 23, 2019.
4. A permanent injunction was granted to restrain the 1^st and 2^nd respondents from reviewing water tariffs without the express consent or authority of the petitioner.
5. Each party had to bear its own costs.

Cases

East Africa

1.Anarita Karimi Njeru v Republic (No 1) [1979] 1 KLR 154 – (Cited)

2.Kimwe, Mercy Wanjiku & 2 others v Governor, Murang’a County & 5 others Constitutional Petition 55 of 2018; [2018] eKLR (Followed)

3.Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1 –(Followed)

4.Salim, Jamal v Yusuf Abdulahi Abdi & another Civil Appeal No 103 of 2016; [2018] Eklr –(Followed)

Statutes

East Africa

1.Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules, 2013 (Consitution of Kenya, 2010 Sub Leg) rule 3 (8) –(Interpreted)

2.Constitution of Kenya, 2010 articles 6 (2) (3); 174;175;176; 186;189;191(2)(4); sections 2(c); 11(b) of part 2 of the Fourth Schedule –(Interpreted)

3.Civil Procedure Act (cap 21) section 6 – (Interpreted)

4.County Governments Act, 2012 (Act No 17 of 2012) sections 30(2); 117, 120 (3) (c) –(Interpreted)

5.Water Act, 2016 (Act No 43 of 2016)  sections 72(1)(b); 74; 77; 85; 86;121;153;154;158;159 –(Interpreted)

International Instruments

1. Convention on the Rights of the Child (OHCHR) 1990 article 24

2. Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) 1981 article 14 (2) (h)

Advocates

1. Mr Kagwi h/ b for Mr Ng’ang’a for the Petitioner

2. Mr Ndegwa for the 1^st Respondent

3. Ms Owuor h/ b for Mr Munyua for the 2^nd Respondent