Water resources authority claimed houses built on riparian land.
BY SAM ALFAN.
PROMINENT housing developer, Superior Homes (Kenya) Ltd, is demanding Sh525million compensation from the Water Resources Authority (WRA) over the proposed demolition of nine Greenpark Estate houses in Machakos County for allegedly encroaching on riparian land bordering the Stony River Athi.
The firm has protested that the enforcement orders issued by the agency on May 31, last year, giving a 21-day deadline for the removal of the residential units had virtually crippled future construction prospects of 700 units.
Lawyer Philip Nyachoti explained to the High Court sitting in Machakos that various banks, including the Kenya Commercial Bank (KCB), had expressed apprehension in financing potential buyers following adverse publicity involving WRA’s unjustified action. The firm had 108 potential clients and sold 10 units monthly in 2018 but business had dwindled to only 48 prospective customers and fetched only three buyers at present.
Making arguments to support twin applications by the aggrieved firm, Nyachoti said the company had secured necessary approvals and permits from relevant statutory bodies and local authorities before embarking on construction of the gated community houses. “The decision to issue enformement orders targeted at specific houses on the property is unlawful and illegal,” the lawyer pointed out during the final submissions of the suit.
He urged the court to enforce orders made by Justice George Odunga in June last year, suspending the offending notices issued to the developer by the agency’s predecessor, the Water Resources Management Authority (WARMA). The court orders are still in force pending the outcome of the firm’s petition and judicial review application.
Justice Odunga had reasoned that the constitutional right to property was paramount and it was justifiable for the firm to seek redress to stop any breaches that were likely to occur in case WARMA carried through its threats.
Nyachoti had submitted the targeted houses have already been sold to third parties who had the legitimate expectation of quiet enjoyment and possession of their properties. Further, the developer risked legal action by the home-owners and enormous financial loss in case of violation of contractual obligations, he said.
“The decision by WARMA to issue the enforcement orders is unreasonable, illogical, illegal, untenable and is motivated by ulterior purposes other than those recognized by law,” the firm’s Chairman and Chief Operating Officer, Reginald Okumu, said in a sworn statement.
She explained that the firm had carried out it’s own survey on the entire 61 Hectare property and confirmed to authorities on September 3, 2013 that the boundaries were compliant with the minimum and maximum distance allowances in respect of riparian land.
A fresh assessment of the boundaries by independent surveyors on June 11, last year had ascertained there was no encroachment on Stony Athi River, she said. “Before the construction of the houses, Superior Homes (Kenya)Ltd applied and obtained an Environmental Impact Assessment licence from NEMA on March 8, 2006,” she said.
“By WARMA’s own admission in its letter dated September 3, 2013, the distance of the masonry boundary wall of the property from the river bank is 25 metres upstream and 30 metres downstream, meaning that no portion of the property has ever been on riparian land,” Okumu said.