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ELCPartially AllowedPetition dated 22nd July, 2018 consolidated with Judicial Review Application Number 192 of 2018· [2019] KEELC 819 (KLR)

Superior Homes (Kenya) PLC v Water Resources Authority (WRA); Gems Management Limited & 9 others (Interested Parties) [2019] KEELC 819 (KLR)

Environment and Land Court
8 November 2019
OAO.A. Angote
11,436 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~46 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court stopped the demolition of eight Green Park Estate homes, ruling the Water Resources Authority had no legal basis to declare them riparian land.

What this practically means

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Executive summary

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Superior Homes Limited, the registered proprietor of Green Park Estate (L.R. No. 27409), petitioned the Environment and Land Court at Machakos, in a cause consolidated with Judicial Review Application No. 192 of 2018, challenging Enforcement Orders issued by the Water Resources Authority on 31st May, 2018 requiring the demolition of eight houses abutting Stoney Athi River on the ground that they encroached on riparian land. The Petitioner relied on the Authority's own letter of 3rd September, 2013 confirming that its boundary wall was 25-30 metres from the river bank, on expert survey and hydrological evidence, and on its NEMA EIA licence, claiming declarations under Articles 40 and 50, a permanent injunction, certiorari, prohibition and damages of Kshs. 466,955,673. The Respondent maintained that the riparian reserve should be measured from the highest flood level, that the houses sat on a flood plain, and that the Petitioner had breached the Water Resources Management Rules, 2006. The court first held that it had jurisdiction despite the statutory remedy before the Water Tribunal, since the Tribunal had not been constituted and no Rules existed. On the merits, the court held that under Rule 116(2), (3) and (4) riparian land of a river is measured from the top edge of the bank in normal flow unless a Water Resources Inspector determines otherwise, and that the Authority had never demarcated the river's flood levels before 2018. It declared the enforcement orders unconstitutional, null and void, issued a permanent injunction, and allowed reconstruction of the collapsed perimeter wall. Damages of Kshs. 466,955,673 were refused because the Respondent did not cause the flooding. The Respondent was ordered to pay the costs of both consolidated causes.

Key legal issues

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01

Jurisdiction of the Environment and Land Court notwithstanding the alternative remedy before the Water Tribunal

Holding

The court had jurisdiction because the Water Tribunal had not been constituted and no Rules existed under Section 121 of the Water Act to guide litigants

Reasoning

Sections 119 and 121 of the Water Act, 2016 vest disputes over decisions of the Water Resources Authority in the Water Tribunal. The general rule in Speaker of National Assembly v Karume is that statutory redress mechanisms must be strictly followed. However, on cross-examination the Respondent's witness confirmed the Tribunal had not been constituted when the suits were filed, and no Tribunal Rules existed. A litigant facing structural and legal bottlenecks cannot be left without recourse, and the Environment and Land Court has original jurisdiction under Section 13(1) of its Act.

p. 8
02

Definition and measurement of riparian land of a river under Rule 116 of the Water Resources Management Rules, 2006

Holding

Riparian land of a river is measured from the top edge of the bank in normal flow, being the entire width of the watercourse plus a minimum of 6 metres up to a maximum of 30 metres, unless a Water Resources Inspector determines otherwise

Reasoning

Rule 116(2), (3) and (4) govern rivers and use the phrase 'top edges of its banks', whereas Rule 116(5) uses 'the highest recorded water level' only for lakes, reservoirs or stagnant bodies of water. The court held the distinction deliberate: for rivers, the 6-30 metre reserve is measured from the banks in normal flow until an Inspector determines and marks a greater high water mark. The Respondent had never marked the highest flood level of Stoney Athi River before 2018, and its own 2013 letter confirmed the wall was 25-30 metres from the river bank.

p. 12
03

Validity of the Enforcement Orders of 31st May, 2018

Holding

The Enforcement Orders were illegal, null and void, being an affront to the right to property under Article 40 and contrary to Rule 116 of the Water Resources Management Rules

Reasoning

The Respondent never recorded the highest flood level of Stoney Athi River before the houses were constructed in 2008, and in 2013 confirmed the wall was 30 metres from the river bank, consistent with Rule 116. It rushed to issue demolition notices after the 2018 floods without a hydrological assessment, and only prepared a report after being sued. Its witness's report was bereft of supporting statistics and could not pass as a scientific objective report, unlike the Petitioner's expert evidence.

p. 12
04

Whether the Petitioner suffered recoverable loss of Kshs. 466,955,673

Holding

Damages were declined notwithstanding proof of the quantum

Reasoning

PW4, a forensic auditor, quantified unrecoverable costs, loss of profits and reputational damage totalling Kshs. 466,955,673. However, the court found the wall collapsed due to the March-May 2018 flooding, which the Respondent did not cause, and the wall could not be reconstructed pending determination of the riparian question. Causation therefore failed and the damages claim was refused.

p. 13

Legal principles established

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  • Where a statute prescribes a specific dispute resolution mechanism, that mechanism should ordinarily be strictly followed, but a litigant who cannot move a tribunal due to structural and legal bottlenecks retains recourse to the High Court
  • Unless a Water Resources Inspector has determined and marked a high water mark or flood level of a river, the riparian land of a river is determined using the normal flow of the river, measured from the top edge of its banks under Rule 116(2), (3) and (4) of the Water Resources Management Rules, 2006
  • The responsibility to demarcate riparian reserves and record flood levels of rivers lies with the Water Resources Authority, and enforcement orders issued without such demarcation lack a legal basis

Court orders

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  1. 1.A declaration that the Respondent's decision in its letter dated 16th April, 2018 and its enforcement orders issued on 31st May, 2018 in respect of the eight houses on LR No. 27409 IR No. 103926/1 (Green Park Estate) is contrary to Article 50 of the Constitution of Kenya
  2. 2.A declaration that the Respondent's decision and enforcement orders are contrary to Articles 40 of the Constitution, violate the Petitioner's right to property and are unlawful, illegal, unconstitutional, null and void
  3. 3.A declaration that the Petitioner's property LR No. 27409 IR No. 103926/1 (Green Park Estate) does not encroach on the Riparian Reserve as defined under Regulation 116(2) of the Water Resources Management Regulations (2006) or at all
  4. 4.A permanent injunction restraining the Respondent from enforcing its enforcement orders of 31st May, 2018 and from interfering with the Petitioner's and Interested Parties' quiet possession of the said houses
  5. 5.The Petitioner is allowed to reconstruct its collapsed perimeter wall on LR No. 27409 IR No. 103926/1
  6. 6.The Respondent to pay the costs of the Petition and the Judicial Review Application

Authorities

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Legislation

  • Constitution of KenyaArticles 40, 47, 50, 159(2)(c)
  • Water Act, 2016Sections 11, 119(1), 121(1) and (2), 122
  • Water Resources Management Rules, 2006Rule 116(1), (2), (3), (4), (5); Part IX; Part 1
  • Environmental Management and Co-ordination (Water Quality) Regulations, 2006prohibition on development within 6-30 metres of the highest ever recorded flood level
  • Environmental Management and Co-ordination (Wetlands, River Banks) Regulations, 2009definition of 'river bank'
  • Environment and Land Court ActSection 13(1)
  • Civil Procedure RulesOrder 53

Cases cited (7)

  • Republic vs. Kenya Revenue Authority Ex-parte Aberdare Freight Services Ltd & 2 Others
    (2004) 2 KLR
  • Peter Kariuki Njenga vs. Gabriel P. Muchira & Another
    (2017) eKLR
  • Mutonyi vs Republic
    (1982) KLR 203
  • Speaker of the National Assembly vs. Karume
    (1992) eKLR
  • Mutanga Tea & Coffee Company Limited vs. Shikara Limited & Another
    (2015) eKLR
  • Kones vs. Republic & Another, Ex-parte Kimani wa Nyoike & 4 Others
    (2008) 3 KLR (ER) 296
  • Damian Delfonte vs. The Attorney General of Trinidad and Tobago
    CA 84 of 2004
Jurisdiction invoked
Section 13(1) of the Environment and Land Court Act (original and appellate jurisdiction), the High Court's supervisory and constitutional jurisdiction under Order 53 Civil Procedure Rules and Articles 40, 47 and 50 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Superior Homes (Kenya) PLC v Water Resources Authority (WRA); Gems Management Limited & 9 others (Interested Parties) [2019] KEELC 819 (KLR)", Case Analysis (2019). Petition dated 22nd July, 2018 consolidated with Judicial Review Application Number 192 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/819/eng@2019-11-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.