The government has suffered a major setback after the High Court suspended the new levies introduced on the provision of water for domestic and industrial use pending the determination of a case filed by civil society groups and five activists
In a ruling, Justice Mugure Thande of the Milimani Constitution and Human Rights Division temporarily halted the implementation of the water use charges set out in the Second Schedule of the Water Resources Regulations 2021.
"Pending hearing and determination of this application, a conservatory order of temporary injunction is hereby issued restraining the Cabinet Secretary for Water, the Attorney-General and the Water Resources Authority from levying, enforcing or implementing the water use charges set out in Part B of the Second Schedule of the Water Resources Regulations 2021," ordered Justice Thande.
She further ordered the CS Water, Attorney General, Water Resources Authority, Water Services Regulatory Board, National Assembly, Council of Governors and Senate to respond to the lawsuit challenging the new water levies by June 12, 2023.
The petition filed by Kenya Water and Sanitation Civil Society Group, Mt Kenya Ewaso Water Partnership, Likii Water Resources Users Association and Likiundu Water Resources Users Association and five activists alleges that the implementation of the regulations will make the provision of water unaffordable to Kenyans.
“The Water Resources Regulations has increased the water user charges at between 500 per cent and 1000 per cent despite water being a necessity to human, animals and plant life. Allowing the increment will make many people lack their basic rights,” lawyer Kibe Mungai informed the judge.
According to the petitioner, National Assembly illegally passed the Regulations without the involvement of the Senate, despite "the fact that managing water resources has been devolved to county governments".
The petitioners also argue that the regulations were passed without public participation especially the plight of vulnerable groups who cannot afford the levies.
Mungai said the regulations are unconstitutional since they will make clean water out of reach to vulnerable groups and farmers who need it for irrigation.
“The new charges for the provision of water negate the state's obligation to provide clean and safe water in adequate quantity to the public. It also shows a failure by the state to fulfil its obligation of providing clean and affordable water,” Mungai said.
The case will be heard on July 6.