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ELCDismissedPetition dated 28th January 2021 (filed 4th February 2021)· [2022] KEELC 1366 (KLR)

Crystal Charlotte Beach Resort v Registrar of Lands, Bondo & 5 others [2022] KEELC 1366 (KLR)

Environment and Land Court
21 February 2022
AOANTONY OMBWAYO
3,865 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kisumu court refused to compensate a hotel owner whose unapproved lakeside buildings flooded, ruling the disaster was unforeseeable and largely his own doing.

What this practically means

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Executive summary

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The Petitioner, an investor in the hospitality industry, purchased three parcels on the eastern shores of Lake Victoria (SIAYA/GOT AGULU/1282, 74 and 1542) and constructed a beach resort at a cost of approximately Kshs. 100 million after obtaining approvals from the County Government of Siaya and an EIA licence from NEMA. In December 2019, rising lake waters flooded and destroyed much of the resort. He petitioned for declarations that the parcels are riparian public land that should never have been registered or approved for private development, that the state Respondents breached a statutory duty of care, and for damages totalling Kshs. 403 million plus general damages. The 4th Respondent attributed the rising waters to an act of God; the 5th Respondent (County Government of Siaya) contended that its approval was conditional upon suspended structures only, and that the submerged ground-level structures were never authorised. The court found that the Petitioner built permanent structures contrary to the approved structural drawings without approvals or NEMA consent, while the approved suspended structures survived the floods. Applying the act of God doctrine from Ryde v Bushell, Blyth v Birmingham Waterworks and Tennent v E.A Glasgow, the court held the flooding was unforeseeable and beyond the Respondents' control, and that the elements of breach of statutory duty, including causation, were not made out. The Petition was dismissed with costs.

Key legal issues

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01

Breach of statutory duty of care by state agencies

Holding

No liability established; the destroyed structures were unauthorised and the flooding was unforeseeable

Reasoning

The court found that approval was conditional on erecting suspended structures only. The Petitioner erected permanent ground-level structures outside the approved drawings without approvals or NEMA consent. The suspended structures survived the floods. The elements of a breach of statutory duty claim—breach, protected class of injury, and causation—were not established against the Respondents.

p. 4
02

Act of God defence

Holding

The rising water levels and flooding were unforeseeable natural events beyond the Respondents' control

Reasoning

Relying on RYDE V BUSHELL, Blyth v Birmingham Waterworks and Tennent v E.A Glasgow, the court held that the floods were extraordinary, unprecedented and unforeseeable, so the Respondents could not be held responsible for failing to foresee or prevent them.

p. 5

Legal principles established

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  • An act of God is only established where the event is due exclusively to natural causes so extraordinary that it could not reasonably have been foreseen and its results avoided by reasonable action
  • To succeed in damages for breach of statutory duty a plaintiff must establish breach of a statutory obligation intended to ground civil liability, injury of the kind the statute was designed to protect against, and causation

Court orders

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  1. 1.The Petition is dismissed with costs to the Respondents
Jurisdiction invoked
Constitution of Kenya, 2010 (petition for violation of Articles 40, 62, 67 and 69); Article 165 jurisdiction of the High Court/Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Crystal Charlotte Beach Resort v Registrar of Lands, Bondo & 5 others [2022] KEELC 1366 (KLR)", Case Analysis (2022). Petition dated 28th January 2021 (filed 4th February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1366/eng@2022-02-21

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