By Sam Alfan.
Real estate company Erdemann Properties Limited has been ordered to pay Ngara Girls High school Sh23 million for trespass and for violation of the right to clean healthy and sustainable environment.
In a landmark decision, the Environment and Land court directed the Chinese owned firm to pay Sh10 million to the school as compensation for the violation of the rights to clean healthy and sustainable environment.
Environment Court Judge J G Kemei also awarded general damages of Sh.3 million to be paid by Erdemann Property Limited, for trespass and violation of the school’s processionary rights.
“The same accrues with interest at Court rates till the complete handover of the suit land and payment in full,” ordered the judge.
The court ordered the company to restore all that parcel of land namely known as L.R. No.LR/209/136/239/R, to its original status, including the construction of the perimeter wall within 60 days.
In default, Erdemann Properties ltd is ordered to pay the school Sh 10 million for the restoration of the land within 90 days.
The court declared that the occupation and continued occupation by Erdemann Property Ltd of the School’s property known as LR.NO. L.R/209/136/239/R constitutes a violation of the Ngara Girls High School right to property as guaranteed under Articles 27 (1) and 40 of the Constitution of Kenya, 2010.
“An order of mandatory injunction be and is hereby issued directing Erdemann Property ltd whether by itself or by its agents, servants or otherwise however to forthwith remove and demolish all the structures erected on Petitioner’s property known as L.R. NO.LR/209/136/239/R within a period of 60 days from the date of this judgement,” declared the judge Kemei.
The court further issued a permanent injunction restraining Erdemann Property ltd and Loise Ndovu Mwathe or their agents from entering or continued occupation of or otherwise dealing with the property.
The court said to buttress the concept of polluter pays principle, the judge said Erdemann Property ltd was responsible for the clean-up and full restoration of the land.
“The Court has found that it is the activities of the 1st Respondent and its defiance to the notices including the erection of a concrete parching machine that have led the parties to the Court. Consequently, I find no reason why I should deny the Petitioners costs in view of the success of their claims,” said the court in the decision.
The Board Management of the School sued the estate developer for violating various conventions on the protection of the environment and the child that Kenya is a signatory, the statutory provisions of the law.
The school supported tabled evidence of the violation through the affidavits of Dr. Beatrice Achieng Ndiga, and Loise Ndotu Mwathe, the Principal and board chair of the Parent teachers’ association, respectively.
The court was informed that the school entered into a lease agreement with Erdemann Property ltd in regard to a portion of its property solely for purposes of temporary stocking of building material during the construction of its development namely River Estate Project on LR 209/22016 and for related construction activities for the period of the construction.
The lease was for 3 years terminating on 10/6/23.
