Waterman Drilling Limited v Daniel Kariuki Mbugua
The bottom line
#Kenya's Environment and Land Court struck out a borehole contract appeal, ruling that breach-of-contract disputes belong in the High Court, not the ELC.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Environment and Land Court has jurisdiction to hear the appeal and the application for stay, given that the underlying dispute was for breach of a borehole drilling contract
Key legal issues
#Whether the ELC has appellate jurisdiction over a dispute founded on breach of a borehole drilling contract
The ELC lacks jurisdiction; the predominant issue is breach of contract, not use of land, title or environmental protection
The court reviewed the pleadings and applied the predominant/dominant issue test. Although the drilling activity occurred on land and involved extraction of water (a natural resource), the gravamen of the dispute was breach of contractual obligations, with remedies of specific performance or refund of consideration. Such a dispute does not fall within Article 162(2)(b) or Section 13 of the Environment and Land Court Act, and the proper forum is the High Court exercising ordinary civil jurisdiction.
Legal principles established
#- Jurisdiction is a threshold issue that must be determined first; without it a court cannot take any step in the proceedings
- A contract for the drilling of a borehole, though performed on land and involving extraction of water, gives rise to an ordinary civil/commercial dispute for breach of contract, not an environment and land dispute; the ELC lacks jurisdiction over such an appeal
Court orders
#- 1.The preliminary objection by the respondent is upheld
- 2.The appeal is struck out
- 3.The accompanying notice of motion dated 18th December 2025 seeking stay of execution is struck out
- 4.Costs of the appeal and application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Nyahururu (ELC jurisdiction)
- Nyahururu CMC ELC Case No. E031 of 2022
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (appellate jurisdiction over subordinate courts in environment and land matters)
Relief refused
#Stay of execution of the trial court's judgment pending appeal
The court lacked jurisdiction over the appeal, so the stay application fell with it
Costs
Costs of the appeal and the application awarded to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Jurisdiction is everything. Without it, a court has no power to make one more step.
the core dispute or predominant issue pleaded is breach of the contract for drilling a borehole
The upshot of the foregoing is that I find the preliminary objection by the respondent to be merited and strike out the appeal and the accompanying application out, with costs to the respondent.
Issues in the judgment
#Special damages figure inconsistent between plaint and trial judgment
Refund figure inconsistent between plaint and judgment
Case caption reads 'ELCPEA' while heading reads 'E.L.C APPEAL'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waterman Drilling Limited v Daniel Kariuki Mbugua", Case Analysis (2026). E.L.C Appeal No. E002 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6235/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.