A dispute over a sewer line in Nairobi’s Eastleigh area has taken a new twist after the Environment and Land court ruled that it was a public infrastructure.
In a judgment, the court said the sewer line in question meets all the hallmarks of public infrastructure as it serves a corridor of properties, is maintained by the Nairobi City Water and Sewerage Company and its connections are regulated through official approvals.
“To re-characterise such infrastructure as a private easement subject to individual landowner control would expose essential sanitation systems to obstruction, undermine environmental protection obligations and jeopardise public health,” Justice Mohammed Kullow said.
Justice Mohammed Kullow.
Photo credit: File | Nation Media Group
In a report, the Commission on Administrative Justice had faulted the Nairobi County government for irregularly approving the construction of the sewer line in a non-transparent manner and contrary to legal and planning frameworks.
The Ombudsman conducted the probe following a complaint filed in October 2023 by Coldstone Investment Limited over a boundary dispute with neighbouring developer Khaleej Towers Limited.
Coldstone alleged that Khaleej’s development was irregularly approved in breach of planning, zoning, building, and environmental laws, resulting in infringement of property rights, loss of privacy, and physical damage to its premises.
But according to the court, evidence showed that the sewer line was constructed in the 1980s and has continuously been maintained, regulated and managed as a public utility and that adjoining landowners are entitled to connect, subject to regulatory approval.
“The evidence establishes that the sewer line was designed and implemented to serve the wider community and not a single proprietor,” said the court.
The court noted that the complainant, Mr John Kihiu and Coldstone relied on survey plans and letters from the city county government and the ministry of lands, asserting that a survey plan does not reflect a registered sewer wayleave between the two parcels and that the sewer line exists on the ground as an easement within one of the said lands.
Justice Kullow said it is a matter of historical reality that much public infrastructure in Kenya, particularly that constructed several decades ago, was laid under statutory authority without formal notation on individual titles or modern survey plans.
The sewerage company said the sewer line was established in the 1980s pursuant to Wayleave Act running along Muratina Street across several parcels of land and extending to the Ruai Treatment Plant.
The court said the absence of registration does not convert public infrastructure into private property where evidence demonstrates long-standing public use, statutory establishment and continuous maintenance by a public authority.
“The court, therefore, finds that the sewer line traversing Land reference Nos 36VII/234 and 36VII/235 constitutes public sewerage infrastructure established under statutory authority and operating as a public utility corridor notwithstanding the absence of formal registration on the survey plan,” said the court.
The court said that where infrastructure is constructed by a government authority, serves multiple properties, is regulated by a statutory body and exists for communal benefit, it transcends the nature of a private easement and assumes the character of public infrastructure held in trust for the public.
The sewerage company said the petitioner had interfered with the sewer corridor by eroding structures, dumping waste and obstructing access, tampering with sewer mechanisms, thereby risking blockages, environmental contamination and infringement of the rights of other users.
The court granted a permanent order restraining Mr Kihiu and his agents or servants from erecting any structures, dumping waste, obstructing access or in any manner interfering with the sewer line and its associated corridor.
