Environment Court declares Eastleigh sewer public infrastructure

Flooded sewage along Eastleigh 8th Street in Nairobi caused by broken sewer lines, following heavy rains experience in the city, on Wednesday, December 15 2021. [File, Standard]

A decades-old sewer line serving multiple properties along Muratina Street in Nairobi’s Eastleigh area has been declared public infrastructure by the Environment and Land Court.

In a judgment delivered by Justice Noor Kullow, the court sided with the Nairobi City Water and Sewerage Company against tenant and businessman John Kithiu, who had argued that the sewer line was a private easement within the property he occupies.

“A declaration is hereby issued that the sewer line traversing Land Reference Nos. 36/VIl/234 and 36/VII/235 constitutes public sewerage infrastructure established under statutory authority and held for communal benefit,” the judge ordered.

Justice Kullow found that Kithiu had unlawfully interfered with the public sewerage system and directed him to immediately remove all obstructions from the sewer corridor, noting the infrastructure bore all hallmarks of a public utility.

The judge warned that recharacterising such infrastructure as private would expose essential sanitation systems to obstruction, undermine environmental protection obligations, and jeopardize public health.

The court's ruling contradicts findings issued last week by the Commission on Administrative Justice (Ombudsman), which had investigated a complaint by Coldstone Investment Limited in October 2023 regarding the same properties and sewer line.

The Ombudsman concluded that the sewer line runs entirely within Coldstone’s land and that its public utility function does not alter land ownership, stating that a sewer wayleave does not convert private land into public land.

The dispute arose after Kithiu filed a petition in August 2024 alleging violations of his constitutional right to a clean and healthy environment against Khaleej Towers Limited, Nairobi City County Government, Nairobi City Water and Sewerage Company, and the National Environment Management Authority over a development project on Land Reference No. 36/VII/234.

He later withdrew the petition before it was heard, leaving only the water company’s cross-petition for determination.

The water company, through Technical Officer Manasses Yada Omala, told the court the sewer line was constructed in the early 1980s under the Wayleave Act and runs along Muratina Street across several parcels to the Ruai Treatment Plant.

It argued the system has been continuously maintained as public infrastructure and that the wayleave exists to facilitate maintenance, repair, and lawful connections by adjoining landowners.

The utility accused Kithiu of erecting temporary structures, constructing an inspection chamber over the sewer line, dumping waste, obstructing inspection access, and tampering with sewer mechanisms, actions it said risked blockages and environmental contamination.

Kithiu denied the claims, maintaining he was only a tenant and lacked capacity to undertake the alleged actions.

He relied on survey plans and correspondence indicating no registered sewer wayleave between the parcels and argued the sewer line existed as a private easement.

In his judgment, Justice Kullow acknowledged the absence of formal registration but held that this did not negate the public character of lawfully established infrastructure, observing that much older public infrastructure in Kenya was laid without formal notation on individual titles.

The court distinguished private easements from public utility corridors and found the sewer line served multiple properties, was constructed by government authority, and is maintained by a statutory body for communal benefit.

On interference, the judge said the water company had presented credible affidavit and documentary evidence demonstrating persistent obstruction, while Kithiu offered mere denials without technical rebuttal.

The court held that once credible evidence of interference with public infrastructure is presented, the burden shifts to the alleged party to disprove it with cogent evidence.

Invoking Articles 42 and 69 of the Constitution, Justice Kullow emphasized that sewerage infrastructure is a critical public health mechanism anchored in constitutional environmental obligations.

The Judge however issued a permanent injunction restraining Kithiu from interfering with the sewer corridor and directed removal of all obstructions.

“A declared that Kithiu had unlawfully interfered with the sewer line and its associated corridor through obstruction and unauthorized activities,” he ordered.

A permanent injunction was issued restraining Kithiu, his agents, or servants from erecting structures, dumping waste, obstructing access, or in any manner interfering with the sewer line and its associated corridor.

Despite the ruling, the water company states that Coldstone Investment Limited, despite being party to the litigation and fully aware of the court's decision, continues to defy the ruling and misrepresent the law.

The conflicting positions have raised questions over the compatibility of the Ombudsman’s report with the binding judicial determination that the sewer line is public infrastructure.

In its decision, the Ombudsman has since recommended that the Director of Public Prosecutions initiate legal action against five senior Nairobi City County government officers over allegations of unlawfully approving and facilitating the Khaleej Towers construction.

The officers targeted include former county executive committee member for built environment and urban planning Stephen Mwangi, chief officer Patrick Analo, Fredrick Ochanda (Assistant Director, Development Control), Simon Omondi (Development Control Officer), and Tom Achar (Director, Planning, Compliance, and Enforcement).

The Ombudsman also called for disciplinary action, a corruption probe into a premature approval letter, Sh22.5 million in compensation for Coldstone Investment Limited, and sweeping reforms to the county's development control system.

However, the court's ruling that the sewer line is public infrastructure contradicts a key finding in the Ombudsman's report, raising questions about the compatibility of the two decisions and the extent to which the Ombudsman's recommendations can proceed given the binding judicial determination.