The Court of Appeal has ruled that Green Park Estate in Athi River is not situated on riparian land, providing a much-needed respite for its residents and developer. The appellate court’s decision, delivered by a three-judge bench comprising Justices Kahthurima M’Inoti, Hellen Omondi, and Imaana Laibuta, has validated the earlier judgment of the Environment and Land Court (ELC), affirming that Superior Homes (Kenya) PLC adhered to all necessary legal procedures during the estate’s construction.
The ruling marks a significant victory for Green Park Estate residents and the developer, who had been facing the threat of losing their homes and enduring substantial financial losses due to an earlier enforcement order issued by the Water Resources Authority (WRA). The WRA had ordered the demolition of the estate’s housing units, claiming that they were built on riparian land, which is subject to legal protections due to its proximity to water bodies.
In their decision, the Court of Appeal judges emphasized that the ELC’s previous ruling was correct, declaring that the enforcement order issued by the WRA was “unlawful, null, and void.” The appellate court’s ruling effectively overturns the WRA’s order and upholds the legitimacy of the development project undertaken by Superior Homes.
The appellate court’s decision has been widely welcomed as a relief to the affected residents, who had faced uncertainty and anxiety over the fate of their homes. For Superior Homes, the ruling not only saves the developer from potential financial and reputational damages but also restores confidence in their compliance with legal and environmental regulations.
However, the Court of Appeal’s decision was not without its contentious aspects. While it affirmed the ELC’s ruling in favor of the residents and the developer, the court declined to award the KSh 466 million that Superior Homes had sought as compensation for alleged business and reputational losses stemming from the enforcement order. Superior Homes, represented by lawyer Phillip Nyachoti, had argued that the enforcement order led to a public relations crisis and financial setbacks, warranting compensation.
The judges, however, rejected this compensation claim, stating, “In the absence of pleaded special damages in the petition, the appellant was not entitled to an award of special damages.” The court’s decision underscores that the developer’s claim for compensation lacked sufficient evidence of special damages directly resulting from the enforcement order.
The Water Resources Authority, which had opposed the compensation claim, argued that the losses suffered by Superior Homes were attributable to flooding and not the enforcement order. This position was supported by the court, which noted that the developer’s financial difficulties were not caused solely by the WRA’s order but were compounded by other factors, including adverse weather conditions.
The ruling has significant implications for property developers and environmental regulatory bodies in Kenya. It reinforces the importance of adhering to legal procedures and environmental regulations while also highlighting the need for clear and substantiated claims when seeking compensation for losses.
In conclusion, the Court of Appeal’s decision brings much-needed relief to the residents of Green Park Estate and Superior Homes, overturning a potentially devastating enforcement order. While the ruling upholds the legitimacy of the estate’s construction, it also serves as a reminder of the complexities involved in balancing development with environmental protection and the importance of presenting well-supported claims in legal disputes.
