Muriuki v Nairobi City Water & Sewerage Company Limited (Environment and Land Appeal E096 of 2024) [2026] KEELC 219 (KLR) (27 January 2026) (Judgment)
Neutral citation:
[2026] KEELC 219 (KLR)
Republic of Kenya
Environment and Land Appeal E096 of 2024
JG Kemei, J
January 27, 2026
Between
Gitonga Kithinji Muriuki
Appellant
and
Nairobi City Water & Sewerage Company Limited
Respondent
(Appeal from the entire judgment delivered in The Water Tribunal Case No E001 of 2023 on 28/6/24)
Judgment
Introduction and background
1.The appeal arises from the judgment of the Water Tribunal delivered on the 28/6/24.
2.The Appellant, who was the claimant in the Tribunal case, filed suit against the Respondent vide a statement of claim dated 26/9/24, seeking inter alia the following reliefs.a.A refund of Kshs 17,847/- paid for the initial impugned bill, another sum of Kshs 54,946.18, the costs of investigations into the leakage and the defective meter, lost rent since 2022, and other related costs.b.General damages for the loss of opportunity rent since the year 2022 at the rate of Kshs 45,000/- per month and related costs as a result of the disconnectionc.Damages for embarrassment and inconveniencesd.Costs of the suit and interests thereon.
3.The appellant’s grievance before the tribunal was that he had been charged with excessive water bills in or around January 2022, which, in his opinion, were unfair, unrealistic and untenable. That, in seeking the Respondent’s intervention, inter alia to explain the high billings and to ascertain whether there were leakages, the Respondent was reluctant and/or unwilling to do so, prompting him to seek the services of a registered water consultant, who, upon investigation, confirmed that there were no leakages. That the Respondent’s non-responsiveness to his numerous complaints led to the filing of the claim. That the disconnection of water to the premises continues to inconvenience the appellant as the same renders the premises uninhabitable hence loss of rental income.
4.The Respondent denied the appellant's aforesaid claim vide the statement of defence dated 1/2/24. The Respondent contended that the appellant was billed for water based on his consumption and that all the bills are correct. The Respondent further contended that the appellant willingly entered into an agreement to pay the outstanding sum, which stood at Kshs 54,946.18, in instalments of Kshs 3000/- and denied any coercion on its part.
5.It further stated that, in response to the appellants' complaints about high water bills, it took certain interventions, including removing the meter for bench tests to determine its functionality. On finding that the meter was malfunctioning, it installed a new meter at the premises. Despite this, the new meter continued to record high consumption figures, prompting another leak detection on the appellants' premises, which showed no leakage. Further, it was noted that the pipes had been freshly repaired and that a disconnected line indicated a likelihood of interference with the water supply to the premises. Finally, it was stated that the water supply had been disconnected due to non-payment and that it had been reconnected in compliance with the tribunal's orders.
6.Upon hearing the claim, the Tribunal dismissed the claim, hence triggering this appeal on the following grounds;a.The learned Chairman of the Water Tribunal erred both in law and fact by dismissing the Claimant's claim before the Court on the grounds that the Claimant failed to prove the claim before the Honourable Tribunal when the evidence before the Honourable Tribunal was adequate and sufficient.b.The learned Chairman of the Water Tribunal erred both in law and fact by failing to appreciate, analyse and chronologically interpret the documents presented by the parties before him but instead gave the wrong analysis and interpretation of the documentary evidence presented before him.c.The learned Chairman of the Water Tribunal erred both in law and fact by failing to appreciate the economical, statistical, meaning and implication of the mathematical and the sum figures presented before him for analysis and evaluation before pronouncing himself in the judgment delivered against the Claimant's claim.d.The learned Chairman misdirected himself in the sum claimed before the National Tribunal, of the water bills paid and subsequently the demanded sum and further as to the timing, the date of accounts, payments in relationship to the claim made by the Claimant and its amends and redress in form of rectification by the Respondent as pleaded.e.The learned Chairman of the Water Tribunal erred both in law and fact by ignoring very key and fundamental issues raised in the hearing of the matter before him, such as the hearsay evidence and instead placed more emphasis on rather extraneous and flimsy matters to justify his rejection and dismissal of the Claimant's claim.f.The learned Chairman of the Water Tribunal overlooked and ignored the weighty reasoned compelling evidence produced in Court both documentary and in the form of oral evidence in writing when making his findings.g.The learned Chairman of the Water Tribunal erred both in law and fact by failing to make a finding based and supported by the facts before the Court in terms of available documentary evidence produced by both the Claimant and the Respondent.h.The learned Chairman of the Water Tribunal erred both in law and fact by failure to analyze all the evidence presented by the parties and moreso the admission by the respondent that upon their own analysis they found the meter faulty which prompted them to replace the meter.i.The learned Chairman of the Water Tribunal erred both in law and in fact by making a finding that since the Appellant was an Advocate of the High Court he could not be coerced into signing an agreement.j.The learned Chairman erred in law and fact by failing to stop the excesses of the organization where the water officers have been acting unilaterally and unlawfully, acting with impunity when billing innocent and honest water partakers by slapping them with exaggerated and manifestly and unexplained water bills which do not make sense.
7.Consequently, the Appellant sought the following orders;a.The judgment of the Water Tribunal be set aside and replaced with a judgement as the Hon Court may find justifiableb.The orders sought in the Tribunal be grantedc.The costs of the appeal and the Tribunal be awarded to the appellant
The written submissions
8.The appellant submitted that he was served with a water bill of Kshs 17,847 for the period between Jan 2022 and May 2022. Additionally, the respondent demanded another sum of Kshs 54,946.18, which the appellant argues was inflated and unjustified. Subsequently, the appellant was coerced to entering into an agreement to make monthly payments of Kshs 3000/- to offset the bill before the water was reconnected.
9.It was submitted that the premises are for rent-paying tenants and that disconnecting the water supply renders them uninhabitable and not conducive to letting, thereby adversely impeding the appellants' ability to generate rental income. The water bill spiked from Ksh 2500/- to Kshs 17487 to Kshs 54946.18, within a short period thereby forcing the tenant to, vacate the house.
10.Regarding the functionality of the meters, it was submitted that the respondent admitted that they were faulty, necessitating their discontinuation and the installation of new ones. However, the new meters continued to show high water consumption, prompting a second leak detection test.
11.On admission of evidence, the appellant relied on the case of Choitram V Nazari [1984] KLR 327, which stated as follows;
12.On the above score, the appellant submitted that, as the respondent had admitted the bill was high and had proceeded to carry out further leakage tests which revealed the absence of leaks, it failed to address the controversy regarding the high bills, instead coercing the appellant into acknowledging the said bill owing to the urgency of having the water connection restored so that the house may be rented out. That the said high bills were never attributed to the alleged pipe repairs, and to date, the respondent has not offered an explanation for the high water bills despite admitting that they were high.
13.On the doctrine of undue influence, the appellant relied on the case of Margeline Wambui Maina Vs Leonard Maina Mbuthi [2020] EKLR, which quoted the decision in Royal Bank of Scotland Vs Etridge AC 773, where the court held that;
14.The appellant submitted that the agreement to pay the bill of Kshs 54,946.18 in instalments was entered into through arm-twisting or coercion, which the tribunal disregarded. It was further submitted that the appellant had no choice but to execute the agreement to allow water reconnection for the benefit of the rental premises. It was further submitted that the agreement did not waive his right to challenge the high water bills.
15.It was further submitted that both the appellant's and the respondent's consultants agreed that there were no leaks. However, the respondent did not call any of its alleged professionals who carried out the tests or visited the premises to test the meters. The respondent's witness, it was argued, was not suited to testify, as she had no capacity to produce the said documents in court, as she was not the maker, and there was no evidence that she visited the scene or signed the report. The respondent's witness's evidence was therefore challenged under the provisions of Section 35 of the Evidence Act, and it was urged that the respondent's evidence ought to be dismissed on that account thereof.
16.The respondent submitted that upon receiving the complaint from the appellant, it investigated and found that one of the meters was fluctuating and was replaced. A further leak detection test was carried out, confirming no visible leaks on the appellant's premises. The appellant further approached the respondent and voluntarily signed a payment plan to pay off the arrears in monthly instalments of Kshs 3000/-, made a down payment of Kshs 20,000/-, and water was reconnected. It was only after the service was reconnected that the appellant challenged the bill's legitimacy, alleging coercion despite no evidence having been presented.
17.It was further submitted that the burden of proving his claim on a balance of probability rested on the appellant, who bore the responsibility of showing that the bills were not only inflated but also that the agreement was coerced and that he suffered losses as a result. The case of Daniel Toroitich Arap Moi Vs Mwangi Stephen Muriithi [2014] EKLR was relied upon to buttress this proposition. It was further added that the appellant has not provided any meter test reports, expert opinion, or a breakdown of the bill showing where the error lay, and the whole set of his claim is unsupported by credible evidence.
18.Regarding the alleged admission of high bills by the respondent, the respondent submitted the results of the test carried out, which were in line with the respondent's standard procedure are not legal admissions and that the testing of the leakages was part of its duty to investigate the complaint and not an admission of error.
19.Regarding coercion or duress, the respondent submitted that the agreement by the appellant to pay the outstanding bill in instalments was voluntarily entered into for the benefit of water connection services, and therefore there was neither duress nor coercion. The court was urged to find that the tribunal did not misdirect itself on the facts or the law and to dismiss the appeal.
Analysis and Determination
20.Having considered the record of appeal in its entirety the written submissions of the parties the issues that commend themselves for determination are;a.Whether the appellant proved that the water bills were unjustifiably highb.Did the appellant suffer damages as a result of high water bills?c.Whether the agreement to pay the bills in instalments was procured through duress.d.Costs of the appeal.
21.As a first appellate Court, this Court has a duty to analyze, reconsider and re-evaluate the entire evidence on record so as to satisfy itself as to the correctness or otherwise of the decision of the trial Court. The principles which guide a first appellate Court were summarized in the case of Selle & Another –vs- Associated Motor Boat Co. Ltd & Others [1968] EA 123 at P.126 as follows:
22.Similarly, in the case of Peters –vs- Sunday Post Ltd [1958] EA 424 Sir Kenneth O’ Connor, P. rendered the applicable principles as follows:
23.Bearing the above principles in mind, I shall now undertake the analysis of the appeal.
Whether the appellant proved that the water bills were unjustifiably high
24.It is not in dispute that the appellant is the registered owner of House No MF 11/J at Makadara Estate in Nairobi. It is also not in dispute that the appellant is a customer of the Respondent, whose mandate is the sale, distribution, and provision of water and sewerage services to the residents of the City County of Nairobi.
25.It was the appellant's case that he was billed for high water supply and sewerage services. That when he lodged a complaint, the respondent did nothing to rectify the issue, forcing him to hire two consultants to investigate the matter. As the bills spiraled, the water was disconnected, forcing his tenant to make a connection and draw water from her neighbour, who happened to be her relative. He averred that the bills rose from Kshs 2500/- to 17,000/- to 54,000/-. It was his case that, due to the respondent's laxity in addressing the issue, he commissioned two water consultants to investigate where the problem lay, and they found no leakage but that the bills were unjustifiably high for a residential property like his.
26.I have perused the Respondent’s response, which has not been challenged. The Respondent adduced evidence that, upon receipt of the appellant’s complaint, it sent its inspectors/officers to the site to investigate the issue. Although there was no leakage in the pipes supplying water to the house, the water metres, on testing, were found to be faulty, fluctuating and under-registering the units being consumed in the house. A decision was then made to replace the meters. Despite the replacement, the bills remained high. A second visit to the house did not reveal any leakage, but fresh pipe repairs were found. The reason for the repair was not ascertained, save that it was suspected that the water supply was being interfered with.
27.The appellant placed before the tribunal several water statements/billings. For example, the water statement for August 2020 – May 2021 shows meter readings ranging from 414 to 538. This corresponds to water bills ranging from Kshs 407/- to 656/-, with consumption ranging from 5 to 80 on the high. The court notes that for the period under review, there were only two months when consumption was zero, yet the respondent continued to bill. The question then is what was being billed when there was no consumption of water?
28.The next statement covers the period from July 2020 to August 2021. Meter readings, consumption, and billing are within the same range, with nothing outside the established consumption pattern for the appellant.
29.The third water statement covers the period from August 2021 to September 2022. Meter readings range from 370 to 2452, consumption from 2 to 171, and billing from 340/- to 52,468/-. The specific statement on page 45 of the Record of appeal shows a sum of Kshs 52,468/-.
30.It is not in dispute that all three statements and bills emanate from the Respondent. The Respondent has not disputed them. In fact, the Respondent adduced evidence in the form of water readings for April–June, showing consumption rising from 89 to 171 and then falling to 109. These months account for the bulk of the consumption leading up to the Kshs 54,000/- bill.
31.It is uncontested that the relationship between the appellant and the respondent is contractual for the provision of water and sewerage services at a fee. Under the contract, the respondent was responsible for providing water services at a fee, and the appellant was obligated to pay for the services consumed and not otherwise.
32.The respondent, being a public body, also has a public interest role in the provision of water and sewerage services in fulfillment of the provisions of Article 43 of the Constitution, which states as follows.
33.Article 47 of the Constitution stipulates that every individual possesses the right to administrative action that is prompt, efficient, lawful, reasonable, and procedurally just. Building upon these provisions, it is sufficient to observe that the Respondent was obliged to respond to the appellant's complaints. According to the evidence presented before the court, the Respondent articulated the measures undertaken in response to the complaint, including testing the meters and replacing them when identified as malfunctioning. Consequently, I find no basis to criticise the respondent in this context.
34.The burden of proof lies on the person who is asserting a cause of action and wants the court to grant him a relief, see sections 107-108 of the Evidence Act
35.Under the aforementioned legal framework, the burden of proof lay with the appellant to substantiate the claim that the bills were excessive. The appellant stated that he engaged two water consultants, who advised him that the water charges were unjustifiably high. Although one of their findings indicated no leakage, there was no report demonstrating a differential in water consumption within the premises, such as actual meter readings before and after the complaints.
36.In the absence of the meter readings, the court is not persuaded that the appellant has presented any evidence to refute the water bills. The responsibility of demonstrating that the water consumption readings and billing were incorrect lay with the appellant.
37.The appellant contended that the property was leased to a tenant and, accordingly, did not have control over water consumption within the premises. As is customary with tenants, unless appropriate measures are taken to monitor water usage, there is a risk of misuse. It is plausible that the alleged interference with the water supply could have been a ground for further inquiry. In the absence of any contrary evidence, there is no basis to conclude that the bills were excessive or inconsistent with typical water levels within the residence. The presumption, therefore, is that the bills were accurate based on the water consumption within the residence. This presumption was not rebutted by the appellant through evidence.
38.Therefore, the court finds that the Hon Tribunal considered the evidence placed before it and finds no grounds to fault its reasoning.
Did the appellant suffer damages as a result of high-water bills?
39.It is the appellant's contention that he incurred both special and general damages as a result of unjustified, excessively high billing, which led to the tenant vacating the house and incurring revenue losses in the form of monthly rental income. Regarding the rent loss claim, the appellant did not substantiate it by providing a tenancy agreement or other credible evidence to support his averments. There were no audited accounts, rent receipts, or invoices to demonstrate that the appellant was receiving rent amounting to Kshs 45,000 per month.
40.It is trite that special damages must be pleaded and proved on the balance of probabilities. In this case, the appellant failed to do so, and the court finds that the claim for damages must fail.
Whether the agreement to pay the bills in instalments was procured through duress.
41.It is commonly accepted that in June 2023 the appellant entered into an agreement to settle the overdue water bill through monthly instalment payments of Kshs 3000/- each. The appellant, however, contends that he signed the agreement under duress, given the pressing need to restore the water connection to the premises and thereby render the premises habitable for rental purposes. Conversely, the respondent has denied the claim of duress and urged the court to find that the appellant signed the agreement voluntarily, based on consumption on a pro rata basis.
42.The legal concept on duress has been defined by Halsburys Laws of England 4th Edition Volume 9 as:
43.In the case of PAO ON VS LAU YIU [1978] 3 All ER 65, the Privy Council said at page 78:
44.In the case of Astley v Reynolds [1731] 2 Stra 915, 93 ER 939, the Court held that the compulsion had to be such that the party was deprived of “his freedom of exercising his will.” It would appear that American law, also, now recognizes that a contract may be avoided on the ground of economic duress. See Williston on Contracts (3rd Edn, 1970 Chapter 47). The commercial pressure alleged to constitute such duress must, however, be such that the victim:-(i) must have entered the contract against his will; (ii) must have had no alternative course open to him and (iii) must have been confronted with coercive acts by the party exerting the pressure. This holding was upheld by the Court of Appeal in the case of Kenya Commercial Bank Limited & another v Samuel Kamau Macharia & 2 others [2008] eKLR
45.In advancing the defence of duress, the appellant states that he agreed to pay the water bills in return for the reconnection of water to the property. For a court to make a finding of duress, the following must be answered in the positive;a.whether the person alleged to have been coerced did or did not protest;b.whether, at the time he was allegedly coerced into making the contract, he did or did not have an alternative course open to him such as an adequate legal remedy;c.whether he was independently advised; andd.whether after entering the contract he took steps to avoid it”.
46.The court has perused the record and finds that the issue of excessively high bills arose in January 2022. The appellant sought professional advice from two water Engineers, who testified on his behalf in court. Their findings were that the water bills were too high for a residential property and that there were no leaks in the pipeline. The court finds that, despite his consultant's advice, the appellant entered into the agreement with full knowledge of the possible reasons for the high bills. It was his evidence that he had paid in instalments to the tune of Kshs 20,000/-, which shows that he did not take steps to avoid the contract until he came to court, albeit after paying a substantial amount of the total outstanding bill.
47.He who alleges must prove. The appellant has not adduced evidence to support a claim of duress or any form of coercion. The court finds that the appellant entered into the agreement for a commercial benefit, namely to achieve faster water reconnection so as to make the house available for renting. The appellant, therefore, acquiesced in the high bills. I say so because nothing prevented him from coming to court at that time, when he had evidence from his consultants that the bills were unjustifiably high, and in the face of the respondent’s discovery that the bills remained high despite changing the meters. Where a party leads another to believe that the dispute has been settled, he cannot be allowed to turn around and change his mind and revive the dispute, however bad a bargain he may have made. The appellant cannot have his cake and eat it.
48.I therefore agree with the decision of the Tribunal that duress was not proved.
49.In summary, the court finds that the parties voluntarily consented to resolve the matter through instalment payments. Absent any coercion, the court would have no basis to fault the Hon. trial court's decision.
50.Final orders for disposala.The appeal is unmerited. It is hereby dismissed.b.The costs of the appeal shall be in favour of the respondent.
51.Orders accordingly
DATED, SIGNED & DELIVERED AT NAIROBI VIA MICROSOFT TEAMS THIS 27TH DAY OF JANUARY 2026.J G KEMEI JUDGE Delivered Online in the presence of:Ms Magogo HB for Mr Chimey for the AppellantMs Nyala HB for Mr Odeny for the Respondent.CA – Ms. Yvette