A real estate developer was Wednesday handed a major reprieve after the High Court stopped planned demolition of multi-million shilling palatial houses in Machakos that are allegedly constructed on riparian land.
High Court Judge George Odunga stopped the Water Resources Authority (Warma) from demolishing the residential units situated in Greenpark Estate.
The estate was developed by Superior Homes (Kenya) Plc.
Warma claims that they have been developed on riparian land bordering the Stony River Athi. The orders were granted in an urgent application filed by Superior Homes through lawyer Philip Nyachoti.
The developer argued that Warma had irregularly issued a directive on May 21, that the residential units should be demolished within 21 days.
The houses have already been sold to third parties and Superior Homes is under contract with the buyers to guarantee them possession and enjoyment of the houses on the contested area.
Lawyer Philip Nyachoti said that while Warma had purported that the houses encroach on riparian land, it had previously carried out its own survey on the property and found that the houses were not on the land.
“Warma had by way of a letter dated September 3, 2013, expressly confirmed and ascertained that the entire boundaries of the property are in fact compliant and outside the minimum and maximum distance allowances in respect of riparian land,” argued the developer.
Upon receiving the directive by Warma that the houses should be demolished, Superior Homes engaged independent surveyors to ascertain the correct position in view of the two contradictory findings by Warma, said the lawyer.
The surveyors report was received by Superior Homes on June 11 and confirmed Warma’s letter of September 3, 2013 to be the correct position.
“This means therefore that there is no encroachment by Superior Homes on the alleged riparian land thus the absurdity of Warma’s Orders.
“By Warma’s own admission, the distance of the masonry boundary wall of Superior Homes’ property from the river bank is 25 meters upstream and 30 meters downstream meaning no portion of the property has ever been on riparian land,” said the developer.
Superior Homes said that given Warma’s previous admission, it was clear that the authority’s subsequent decisions to the effect that part of the property are on riparian land was illogical, absurd, unreasonable and illegal
Superior Homes was directed to serve Warma with court papers.
Further directions will be issued on July 3.