The Green Park Estate is not constructed on riparian land.
The High Court issued orders barring the Water Resources Management Authority (Warma) from demolishing or interfering with the high-end estate, built by Superior Homes in Athi River.
“Green Park Estate does not encroach on riparian reserve. A permanent injunction is hereby issued restraining the respondent from interfering with the petitioner’s and interested parties’ quiet possession of the said houses,” he decreed.
He, however, declined to compensate the real estate firm for damages caused by flooding after finding that Warma had no hand in the rains.
“The evidence before me shows the petitioner’s (Superior Homes) wall collapsed due to the flooding that occurred in March-May, 2018. It is true that the flooding... could have contributed to the loss of business, reputation and unrecoverable costs,” the judge ruled.
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“Considering it is not the respondent who caused the flooding and considering that the wall could not be constructed until the issue of whether or not it was on riparian land was resolved, I decline to award to the petitioner the damages.”
Superior Homes, represented by lawyer Philip Nyachoti, called experts to prove its case. Individuals who had bought homes were enjoined in the case, and argued that Warma alongside other agencies had cleared the construction of the houses.
They claimed that a 21-day notice issued to them was unfair, and had caused anxiety over millions of shillings worth of investments that risked being poured down the drain without any justification.
Hydrological expert Samuel Kioni said the 400 houses were not on riparian reserve.
Kioni testified in a case where Superior Homes is challenging a notice by Warma to demolish the units.
He ruled out the possibility of Stoni Athi River naturally overflowing into the houses.
Kioni said last year’s flooding at Green Park was likely to be as a result of backwater caused by obstruction of flow that occurred during the construction of a bridge across the Stoni Athi River on Mombasa Road.
The witness told the court that no part of Green Park Estate was within the Riparian Reserve as demonstrated in a study and recommendation made. He said, after a careful research, he had recommended that a dyke of about 100 metres be constructed at Green Park Estate to control possible flooding.
The court had initially barred Warma from demolishing the houses after Superior Homes moved to court lamenting that it had not been heard to prove that the property was legally acquired.
The company, through Nyachoti & Company Advocates, said the enforcement order issued on May 31, 2018, could not be complied with since the timeline was inadequate to ascertain the concreteness of the boundary dispute.
The judge ordered a halt in the intended demolition or removal of residents until the court made its decision on the dispute between the developer and Warma.
Nyachoti told the judge that the authority’s decision was illegal and unlawful as it contravened the applicant’s legitimate expectation and was motivated by extraneous purposes.
The lawyer submitted that Warma’s position that the houses in question were on riparian land contradicted a finding by the same agency in a letter dated September 3, 2013.
The court heard that Warma held two contradicting findings over the suit property. Superior Homes wanted the court to prohibit Warma from implementing the decision to demolish the houses pending hearing and determination of the suit.
