The court of appeal has ruled that superior Homes (Kenya) PLC development, Green Park Estate, does not encroach riparian land.
The Water Resource Authority issued an enforcement order on 31st May 2018 requiring the appellant to demolish and remove the eight units owned by the purchasers in the estate and restore the riparian reserve to its original state within 21 days.
The said units abuts the Stoney Athi River, a tributary of the Athi River, with the boundary of the estate laying between the units and the river.
The enforcement order was based on the assertion that the units had encroached on riparian land bordering the river.
Judges K M’Inoti, H Omondi and K. L Laibuta ruled that a 2013 letter by the Water Resource Authority read with the appellant’s surveyor report persuades them that the units are not on riparian land as defined by rule 116 of the Water Resources Management Rules, 2007.
“Accordingly, we are satisfied that the ELC did not err in finding that the units were not on riparian land, and that the enforcement order was unlawful, null and void,” the bench ruled.
Through lawyer Philip Nyachoti, the court heard that a letter dated 3rd September 2013, the Water Resource Authority informed the real estate company that the distance from the Green Park Estate’s masonry wall to the river bank was 25 meters upstream and 30 meters downstream, which was clearly within the requirements of rule 116(2).
“Notwithstanding its responsibilities under the Act and the Rules, the 1st respondent did not inform the appellant that the units were on riparian land, if indeed they were,” Nyachoti submitted.
Jurisdiction
On the issue of jurisdiction, the appellate court further found that the Environment and Land Court did not err in hearing and determining the case.
According to the Water Resource Authority, the matter ought to have been heard and determined by the Water Tribunal.
However, the judges ruled that the case was properly before the ELC since the water tribunal had not been constituted.
However, the court failed to grant Superior Homes Ltd the award of special damages of Sh 466,955,673.00, which prayer formed the basis of the appeal.
In his submissions, Nyachoti told the three-judge bench that the amount for special damages and loss were assessed by an expert whose evidence was not controverted by the Water Resource Authority.
“In denying the appellant the special damages, the learned judge erred by misapprehending the evidence and submissions, thereby arriving at a wrong decision,” Nyachoti told the court.
He added that the enforcement order for the demolition of the units, which was widely publicized in the media, occasioned the appellant a public relations disaster and financial loss for which the appellant was entitled to compensation.
However, the judges ruled that the appellant did not particularize in the petition the special damages it allegedly suffered as a result of the issuance of the enforcement order.
“There was no cogent evidence to justify such an award. As regards issue number three, we conclude that the ELC did not err in declining to award the appellant special damages of Sh466,955,673.00.
