By Martin Masai
The High Court of Kenya has delivered a sweeping conservatory order halting the enforcement of county laws that impose fees, levies, or permits for borehole drilling and water abstraction across all 47 counties — including Machakos — in a landmark suit filed by the Rig Owners Association.
In orders issued on June 19, 2025, Justice Bahati Mwamuye, sitting at the Milimani Law Courts, directed that every county government — from Mombasa (1st Respondent) to Nairobi (47th Respondent) — cease any implementation or enforcement of legislation requiring payment for water drilling activities, pending determination of a constitutional petition.
The ruling arose from a petition (HCCHRPET/E376/2025) filed by the Rig Owners Association and 59 other parties against the Council of Governors, Kajiado County, and others, challenging what they term as “unconstitutional, duplicative, and punitive levies” imposed by county governments.
Though initially directed at 11 counties named in the petition, the court expanded the scope to cover all counties. “Noting that at both the interlocutory and main stage of this matter the Petitioners are seeking reliefs against all 47 Counties…an order be and is hereby issued…substituting in their place each of the 47 County Governments as Respondents,” Justice Mwamuye stated.
Machakos in the Crosshairs
Machakos County, which has in recent years ramped up enforcement of environmental and water-related permits through county legislation, is now compelled to suspend these activities as the matter progresses. Local rig owners and water users have long complained about multiple levies — some reportedly amounting to tens of thousands of shillings — which they say hinder affordable water access in arid and semi-arid areas.
Speaking to The Anchor, a rig operator based in Matuu welcomed the court’s decision. “We’ve been battling multiple permits for drilling — from environmental clearance to county ‘movement fees.’ This freeze gives us breathing space,” he said.
The Rig Owners Association argues that water abstraction, particularly involving boreholes, falls under the purview of national legislation and regulation through the Water Resources Management Authority (WARMA), and not county assemblies.
The case could reignite tensions over devolved versus national mandates in water resource governance. Legal experts warn that unless clearly resolved, parallel county demands will continue to frustrate national efforts to expand water access.
Counties, on the other hand, have insisted on the legality of their legislation, often citing environmental protection, land use planning, and revenue generation under devolved functions.
The court gave the Petitioners until June 24 to serve amended pleadings on all 47 counties. Respondents were ordered to file replies by July 22, and the matter will next be mentioned virtually on August 12 to confirm compliance and set a hearing date.
Observers say the ruling could shape the future of intergovernmental fiscal relations and licensing regimes in devolved Kenya. Should the petition succeed, it would not only halt all existing fee regimes but also establish precedent, limiting the reach of county legislation in technical sectors like water abstraction.
For now, Machakos — alongside the rest of Kenya’s 46 counties — must wait as the courts determine whether they have overstepped their legal mandate.
This story was first reported by The Anchor, which continues to track the impact of devolved legislation on essential services such as water and sanitation.
Stay Anchored.
Www.theanchormedia.org
