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County flouted law in unilaterally merging water companies, court told

By Kamau Maichuhie | November 27th 2018
Kiambu Governor Ferdinanrd Waititu. [Jenipher Wachie/Standard]

The Government violated the law in merging eight water companies in the county, the High Court was told yesterday.

Lawyers representing companies, community water projects and Water Services Regulatory Board (WASREB) told Justice Christine Meoli due process was not followed in merging the companies.

For instance, they said, public participation was carried out as required by law.

The petitioners want the court to declare unconstitutional the Kiambu Water Act 2018, which amalgamated the water companies and also seeks to take over managements of community water societies.

Water projects

They want the court to annul the County Act and have it set aside on the grounds that it is against the Constitution.

Early this year, Justice Meoli barred the county government from effecting a law requiring that all community water projects be part of the recently merged water companies.

The community water providers, in a petition filed by Juja Farm Water Society and a community water users' association, said the county government overstepped its mandate by attempting to appoint a managing secretary, who is a public official, to head a private entity.

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Michael Wangila and Kithinji Marete appeared for the community water societies, while Bernadette Njoroge and Michelle Sagini represented WASREB and Thika Water and Sanitation Company (THIWASCO), which is an interested party.

Manasseh Mwangi appeared for the county government.

Wangila argued that the new law was oppressive, unlawful and unconstitutional as the county government failed to conduct adequate public participation hearings contrary to Articles 10 and 196 of the Constitution.

“This impugned county water Act will adversely affect service delivery to members of the community water societies,” Wangila told the court.

Ms Sagini said the notice issued by the county government calling for public hearings on the matter was very short and that interested parties did not have enough time to take part in the exercise.

Ms Njoroge, for WASREB, said the decision to merge the water companies was done in a hurry and did not give enough time to parties to deliberate over the matter.

She said Governor Ferdinand Waititu circumvented requirements of public participation by unilaterally appointing directors to the merged water companies contrary to law.

Devolved function

However, the county government argued that water was a devolved function and that the court should avoid being used to meddle in the operations of the county government.

Mwangi also claimed the court lacked the jurisdiction to hear the matter, a claim Marete dismissed as misleading.

The county government’s lawyer asked the court to throw out the petition with costs, saying all the necessary procedures were followed before enactment of the new water law.

Community water societies said they were private entities, dully registered by WASREB to supply domestic water to its members, the work they had been doing for the last 25 years, and should therefore not be interfered with.

The court will make its judgment on May 10, next year. The interim orders remain in force until then.

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