- Justices Kathurima M'inoti, Hellen Omondi and Dr. Imaana Laibuta said the enforcement order issued by the Water Resources Authority requiring superior homes to demolish and remove the units was unlawful.
- Superior homes is the registered proprietor of the land in which the housing estate -Green Park Estate- is developed. It is managed by Gems Management Ltd.
Image: FILE
The Court of Appeal has affirmed a decision of a lower court that declared some eight units at Green Park estate were not sitting on a riparian reserve.
Justices Kathurima M'inoti, Hellen Omondi and Dr. Imaana Laibuta said the enforcement order issued by the Water Resources Authority requiring Superior Homes to demolish and remove the units was unlawful.
Superior Homes is the registered proprietor of the land in which the housing estate -Green Park Estate- is developed. It is managed by Gems Management Ltd.
The court of appeal Judges said from the evidence on record, superior Homes commenced construction of the estate and the units in 2007.
Prior to the said construction, Superior Homes which is represented by advocate Philip Nyachoti obtained the requisite environmental impact assessment license from the National Environment Management Authority NEMA on March 8.
The court records show that from 2007, neither NEMA nor the Water resources authority alleged that the units had encroached on riparian land.
But what caused the authority to issue the enforcement were the torrential rains experienced in the country in 2018, leading to flooding of the Stoney Athi River.
Prior to the construction, superior Homes obtained the requisite environmental impact assessment license from the National Environment Management Authority (NEMA) on March 8 2006.
From 2007, neither NEMA nor the Water Resources Authority alleged that the units had encroached on riparian land.
"After considering the evidence on record, we are not persuaded that the Environment and Land Court (ELC) came to the wrong conclusion," they said.
The three-judge bench said the water authority letter dated September 3, 2013, read with Superior Homes surveyor report persuaded them, as found by the ELC, that the units are not on riparian land as defined by rule 116 of the water resources management rules,2007.
"Accordingly we are satisfied that the ELC did not make a mistake in finding that the units were not on riparian land and that the enforcement order was unlawful," they said.
But on whether the trial court made a mistake in declining to award Superior Homes special damages of Sh466 million, the judges said it is clear from the record that Superior Homes did not particularise in the petition the special damages it allegedly suffered as a result of the issuance of the enforcement order.
"It's a basic principle that before a court can award special damages, those damages must be strictly proved," they said.
The damages they said have to be tabulated in a petition.
The water authority had argued that Superior Homes was not entitled to special damages because those damages were not pleaded in the petition.
The judges agreed with the authority saying "In the absence of pleaded special damages in the petition, superior Homes was not entitled to an award of special damages".
They faulted Superior Homes for failing to provide sufficient evidence that the damages were suffered as a result of the authority's unlawful conduct.
"We are in agreement with the authority that the appellant did not demonstrate that it suffered the alleged losses as a result of the enforcement order," they said.
On the contrary, the judges said the Superior Homes's own evidence suggests that the losses were suffered, not as a result of the enforcement order but because of the flooding of its estate which discouraged potential buyers.
"There was no sufficient evidence to justify such an award. We conclude that the ELC did not make a mistake in declining to award superior Homes special damages of sh 466 million," they ruled.