Water agency suffers blow in Athi River residential estate row

The court of appeal has blocked the Water Resources Authourity (WRA) from challenging a High Court’s ruling that endorsed construction of Green Park Estate, Athi River, on an alleged riparian land.

The State agency wanted the court to allow filing of an appeal out of the stipulated timelines, so that it can challenge the orders that barred it from demolishing or interfering with the high-end estate built by Superior Homes (Kenya) PLC.

But the court found that the real estate developer had already lodged a separate appeal against the same High Court judgment and allowing WRA to file another case would be a duplication.

“It is unnecessary to extend time to file the record of appeal as the WRA is at liberty to raise the issues it intends to raise in the cross-appeal, which has already been filed. Extending time would only result in duplication,” said Justice Hannah Okwengu.

In urging court to extend time, WRA explained that the delay to file the appeal was partly due to the closing down of the court as a result of the Covid-19 pandemic. It had also told the judge that the intended appeal is arguable and raises matters of public interest.

The State agency wants the appellate court to overturn a judgment by Environment and Lands Court dated November 8, 2019 which declared that the residential estate does not encroach on riparian reserve.

Justice Oscar Angote noted that Rule 116(2) of the Water Resources Management Rules confines the definition of riparian land to the entire width of the water course plus an additional minimum distance of six meters up to a maximum of 30 meters on either side of the river bank.

He said at the time the real estate company acquired the suit property measuring 152 acres and started constructing houses in 2008, the riparian reserve of Stoney Athi River to the perimeter wall was and “is beyond the minimum required distance of six metres”.

“The determinant distance of a minimum of six metres and a maximum of 30 metres is from the banks of a river, which actually represents the channel of a river in its normal flow. Until the Water Resources Inspector determines otherwise, the total area covered by riparian land remains relatively constant across a river,” said the judge.

The case started after WRA marked some houses within the estate and a perimeter wall for demolition following flooding in March and May, 2018.

WRA’s regional manager told court that he went on site during the floods and did a cross-section drawing of the river to determine the highest water level.