The High Court in Murang’a has issued a permanent injunction blocking a local water firm from increasing water tariffs.
Justice Kanyi Kimondo on Tuesday barred Murang’a South Water and Sanitation Company (MUWASCO) and Water Service Regulatory Board (WASREB) from increasing water tariffs without the consent of the county government.
While delivering his ruling, Kimondo said the two bodies should seek authority from the devolved administration before increasing water tariffs.
Justice Kimondo further ordered removal of Kenya Gazette No 4805 of May 23 from the court, declaring it null and void.
MUWASCO, in a gazette notice No. 4805 of May 23, published implementation of new tariffs to the company’s customers.
The water firm which serves residents of Murang’a South, including Kigumo, Kandara and Maragua constituencies had done public participation seeking consent to increase the tariffs.
Murang’a county government filed a petition in the High Court praying to block the firm from increasing the water tariffs without its authority.
During the proceedings, the water company argued that the county administration lacked mandate to block review of tariffs, on grounds that it owed millions of shillings as unpaid for water consumed in health centres among other public utilities connected with water.
Muswasco further accused the county government of not supporting the firm financially so as to meet its production costs and connect more homesteads with water.
The water firm in its application indicated that it had authority from the county government to provide water and sanitation services to its area of jurisdiction and that they had applied to the WASREB for the review of tariffs.
“Lowering the tariffs will jeopardise operations of the company as the reduced water prices cannot enable the company to meet all costs of production,” read part of MUWASCO’s application.
An affidavit sworn by MUWASCO Managing Director, Ms. Mary Nyaga indicated that after the introduction of the low tariffs by the county government, the cost recovery started going down from 91 per cent to 61 per cent, adding that the firm was not able to cater for the supplies and to honour the monthly payments for the loans.
The county government maintained that water is a devolved function thus the devolved unit has the final say about adjustments of water tariffs.
The court had declined an application lodged by MUWASCO and WASREB seeking to have the matter transferred to a water tribunal.
Kimondo ruled that Water Tribunal is not seized of jurisdiction and that the dispute was properly before the court.
“The problem however is that the company and the regulator is a product of the repealed Water Act 2002, which was transferred to Water Act 2016,” said Kimondo in the judgment.
He added that in the spirit of the Constitution, it remained doubtful that WASREB could approve water and sanitation sewerage tariffs without consultations or consent of the county government.
“I readily find that the act by the Muswasco in effecting the regular tariff adjustment is on shaky legal and Constitution foundation,” ruled the judge. The parties were given 30 days to appeal if not satisfied with the judgment.
By Bernard Munyao