Agency loses Sh270m sea water use suit

Director Water Resources Management Authority (Warma) John Nyaore addresses reporters during a consultative forum with County Governors in Mombasa on November 25, 2013. Justice Oscar Angote struck out a case by Warma, which sought Sh270.2 million from Kensalt Limited under the Water Act and Water Resource Management rules. FILE PHOTO | KEVIN ODIT | NATION MEDIA GROUP

What you need to know:

  • Justice Oscar Angote struck out a case by Water Resources Management Authority (Warma), which sought Sh270.2 million from Kensalt Limited under the Water Act and Water Resource Management rules.
  • Justice Angote said statute imposing tax on a subject must be clear in its language so as not to allow speculation on what is payable and to avoid the accompanying result of abuse by a State organ mandated to collect taxes.

A management agency does not have the right to levy charges for the use of sea water, the High Court has ruled.

Justice Oscar Angote struck out a case by Water Resources Management Authority (Warma), which sought Sh270.2 million from Kensalt Limited under the Water Act and Water Resource Management rules.

The judge said that the suit was based on the erroneous presumption that the agency could levy charges.

Justice Angote said a lake, pond, swamp, marsh, stream, water course, estuary, aquifer and sea water are in different categories. He said they cannot be said to be of the same kind for the purpose of statutory interpretation.

“In view of the fact that the plaintiff’s suit is based on erroneous presumption that it can levy charges for use of sea water, I find and hold that the suit does not disclose a reasonable cause of action in law against the defendant,” the Judge said.

Justice Angote said statute imposing tax on a subject must be clear in its language so as not to allow speculation on what is payable and to avoid the accompanying result of abuse by a State organ mandated to collect taxes.

“Parliament should have specifically stated that sea water is a resource for levying charges,” Justice Angote ruled.

Warma went to court seeking payment for outstanding water dues for the period October 2007 to September last year together with interest.

Kensalt responded with an application seeking to have the case by the authority struck out, saying, it does not disclose a reasonable cause of action because sea water is not a water resource as defined in the Water Act.