Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedPetition dated 09/10/2018· [2019] KEELC 1225 (KLR)

Milimani Splendor Management Limited v National Environment Management Authority & 4 others (Petition 61 of 2018) [2019] KEELC 1225 (KLR)

Environment and Land Court
11 October 2019
KBK. Bor
6,021 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court ruled buildings near rivers must respect the full riparian reserve, measured from the water's edge, not the river's centre.

What this practically means

#

Executive summary

#
The Petitioner, the management company of Milimani Splendor Apartments on L.R. No. 209/20032 bordering Kirichwa Kubwa River, petitioned for declarations that NEMA, the Attorney General, Nairobi City County and the Ministry of Lands violated its rights to property (Article 40), fair administrative action (Article 47) and fair hearing (Article 50(1)) by issuing an improvement notice on 15/08/2018 requiring removal of structures said to encroach on the riparian reserve. It sought quashing of the notice, an injunction against demolition, and compensation. The Petitioner traced the development's approvals, a 2007 joint survey finding no encroachment, and a 2010 consent in a judicial review matter, and contended that riparian reserve must be measured from the centre of the river per its deed plan, and that erosion, not its activities, altered the river's course. The Respondents maintained the notice was lawfully issued, that structures encroached on the reserve, and that notice plus a right of appeal satisfied fair hearing. The court reviewed the conflicting statutory regimes on riparian reserve widths and held that measurement must be pegged on the high and low watermarks, not the centre of the river; there was no evidence the highest flood level was considered, and the Petitioner failed to prove the river changed course or that its buildings fell outside the reserve. It found no violation of the Petitioner's rights, declined the orders sought, and dismissed the petition with each party bearing its own costs, while directing a survey and restoration of the Kirichwa Kubwa riparian reserve within 90 days.

Key legal issues

#
01

Measurement of the riparian reserve

Holding

The riparian reserve must be measured from the high and low watermarks, pegged on the riverbank and the highest point of flooding, not from the centre of the river; the Petitioner's 10-metre reserve measured from the middle of the river was erroneous

Reasoning

The court reviewed the Physical Planning (Subdivision) Regulations 1998, Survey Regulations 1994 and EMCA Water Quality Regulations 2006, noting conflicting provisions. Applying the definitions of high and low watermarks in the Wetlands, River Banks, Lake Shores and Sea Shore Management Regulations 2009, it held measurement is pegged on the riverbank and highest flood level. There was no evidence the highest recorded flood level was considered when the Petitioner's survey was done.

p. 12
02

Encroachment and proof of change of river course

Holding

The Petitioner failed to prove the river had changed course or that its buildings fell outside the riparian reserve; the Developer had built additional flats while knowing the authorities objected to the riparian reserve

Reasoning

The Petitioner asserted erosion upstream altered the river's course but produced no survey records of the original course. The court observed that rivers vary in width, meander, and may change course, and that a river includes the bed, banks, adjacent land and flood plain, justifying a buffer zone. The Developer had also constructed three additional flats after planning authorities had taken issue with the riparian reserve.

p. 3
03

Violation of Articles 40, 47 and 50

Holding

No violation established; the improvement notice provided an opportunity to respond and a right of appeal, and the issuance of the notice did not amount to a deprivation of property

Reasoning

The court weighed the Petitioner's claims of denial of fair hearing against the 1st Respondent's evidence that the notice informed the Petitioner of its right to appeal and to submit documents. The court found the Petitioner had not demonstrated that its development was outside the riparian reserve and emphasised the constitutional duty to protect the environment and the prevention principle, holding the constitutional environmental imperatives bind the Respondents and the multi-agency bodies.

p. 14
04

Conflicting statutes on riparian reserve width

Holding

The court agreed with the Petitioner that the legal provisions on riparian reserve measurement are in conflict and called on Parliament to harmonise them

Reasoning

The Survey Regulations provide for a reservation of not less than 30 metres above high-water; the Physical Planning (Subdivision) Regulations require not less than 10 metres on each bank; the Water Quality Regulations prescribe a minimum of 6 metres and a maximum of 30 metres based on the highest recorded flood level. The court held that the later EMCA regulations, which take into account the high and low watermarks under the 2010 Constitution, govern, but noted the need for legislative harmony.

p. 12

Legal principles established

#
  • The riparian reserve is to be measured from the high and low watermarks with reference to the level of contact between the water and the bank, not from the centre of the river
  • Rivers and all land between the high and low watermarks constitute public land under Article 62 of the Constitution
  • Every person has a constitutional duty to cooperate with State organs to protect and conserve the environment and ensure ecologically sustainable development
  • A party alleging that a parcel of land falls on a riparian zone must prove it with documents and survey reports

Court orders

#
  1. 1.The orders sought in the petition dated 9/10/2018 are declined and the petition is dismissed
  2. 2.Each party will bear its own costs
  3. 3.The 1st, 2nd and 3rd Respondents are directed to undertake a survey of Kirichwa Kubwa River from its source all the way downstream within 90 days of the date of the judgment to determine the boundary between the river and the adjacent landowners with a view to restoring the riparian reserve
  4. 4.The measurement of the riparian reserve will be based on the high and low watermarks and not the centre of the river

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10, 40, 47(1)&(2), 50(1), 62, 69(1)&(2), 70, 176; Fourth Schedule Part 1 Section 21; Preamble
  • Environmental Management and Coordination Act (EMCA)Sections 2, 9, 42, 108, 111
  • Fair Administrative Action Act2015
  • Physical Planning ActSections 29, 38
  • Physical Planning (Sub-division) Regulations, 1998Regulation 15 (Section 15(c))
  • Survey ActRule 111, Regulations 40 and 88 of the Survey Regulations of 1994
  • Water Act2016
  • Agriculture ActBasic Land Usage Rules of 1965
  • Environmental Management and Coordination (Water Quality) Regulations, 2006Rule 6(c)
  • Environmental Management and Co-ordination (Wetlands, River Banks, Lake Shores and Sea Shore Management) Regulations 2009Definitions of high and low watermark
  • Environmental Impact Assessment and Audit Regulations 2003Annual environmental audits
  • Land ActRiparian reserve definition
  • Sessional Paper No. 17 of 2017 (National Land Use Policy)Chapter 3 (3.16(ii))

Cases cited (5)

  • Republic v National Management Authority, Ex parte Faraday Limited (JR Application No. 792 of 2007)
  • Republic v The Minister for Lands & 2 others Ex parte Faraday Limited (ELC Miscellaneous Application No. 51 of 2010)
  • Castle Rock Gardens Management Limited v NEMA & 4 others (ELC Petition No. 7 of 2017, formerly HCCC Pet 24 of 2017)
    [2018] eKLR
  • Joseph Nzila v Minister for Lands
    [2017] eKLR
  • International Centre for policy and conflict and 5 others
    [2013] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 - enforcement of fundamental rights (Articles 40, 47, 50) in the Environment and Land Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (12)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Milimani Splendor Management Limited v National Environment Management Authority & 4 others (Petition 61 of 2018) [2019] KEELC 1225 (KLR)", Case Analysis (2019). Petition dated 09/10/2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1225/eng@2019-10-11

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