Court of Appeal affirms Green Park Estate not on riparian land

A section of Green Park Estate in Athi River, Machakos. [David Njaaga, Standard]

The Court of Appeal has affirmed an Environment and Lands Court's finding that Green Park Estate in Athi River is not on riparian land.

Court of Appeal Judges Kathurima M’Inoti, Hellen Omondi and Imaana Laibuta found that Superior Homes estate had applied for clearance from the National Environment Management Authority (Nema) in 2006 before starting construction.

They noted that Nema and the Water Resources Management Authority (WARMA) never raised an issue with Superior Homes’ building or encroaching on the riparian land until seven years later.

According to them, the developer also notified the two agencies that the estate’s wall is 25 metres upstream and 30 metres downstream.

They were of the view that WARMA called its witness, who claimed the estate was in flood plains instead of encroaching on riparian land.

“After considering the evidence on record, as we have earlier stated, the learned judge was not satisfied that the units were on riparian land. On our part, and taking into account the fact that the learned judge had the advantage of seeing and hearing the witnesses as they testified and assessing their credibility, we are not persuaded that the ELC came to the wrong conclusion,” ruled the bench headed by M’Inoti.

They also dismissed WARMA’s cross appeal. It argued that the Environment Court had failed to consider its argument that the housing units were on riparian land. At the same time, it argued that the court declined to find that the case ought to have been first heard by Water Appeals Tribunal.

The judges declined to award the developer Sh466 million as compensation. They argued that there were no particulars of how it suffered losses owing to WARMA’s enforcement order.

They agreed with Environment Court Judge Oscar Angote that the flooding discouraged potential buyers. Justice Angote also issued orders barring WARMA from demolishing or interfering with the estate.

“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 the interested parties’ quiet possession and the said houses on LR no 27409 IR No 103926/1,” he ruled.

Superior Homes lawyer Phillip Nyachoti called experts to prove its case. Individuals who had bought homes had also joined the case arguing that WARMA and other agencies had cleared construction of the houses.