Residents of Green Park Estate in Athi River, Machakos County, can now breathe a sigh of relief after the court of appeal ruled that the residential property is not sitting on a riparian land.
A three-judge bench composed of Kathurima Minoti, Imaana Laibuta, and Hellen Omondi declared that all necessary procedures were followed by Superior Homes, the property developer, before the construction of the housing units.
The appellant court upheld a judgment delivered by the Environment and Land Court (ELC) that ruled that the units were outside riparian land.
“On the second issue as to whether the ELC erred in holding that the units were not on riparian land; and by declaring the enforcement order unconstitutional, null and void. After considering the evidence on record, as we have earlier stated, the learned judge was not satisfied that the units were on riparian land,” the judges announced.
“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.“
The Water Resources Authority (WRA) had issued an enforcement order back on May 31, 2018 requiring the developer to demolish and remove the eight units owned by the purchasers in the estate and restore the riparian reserve to its original state within 21 days.
The appellant court said that the enforcement order issued by the Authority was based on the assertion that the units had encroached on riparian land bordering the river.
It further concluded that the orders issued by the authority were illegal, stating that the WRA had carried out a survey of the estate and confirmed that the estate did not encroach on riparian land.
“By way of remedies, the appellant prayed for declarations that the enforcement order was null and void for violating its right to property under Article 40 of the Constitution and the right to fair hearing under Article 50 of the Constitution; that the Estate and the units did not encroach on the riparian reserve as defined by regulation 116(2) of the Water Resources Management Rules, 2007,” the judges concluded.
