Residents of Green Park Estate in Athi River have got a reprieve after the Court of Appeal ruled that their homes are not built on riparian land. ‘

A three-judge Bench led by Kathurima M’Inoti, Hellen Omondi and Imaana Laibuta found that Superior Homes estate had followed all the procedures before constructing the estate.

“Accordingly, we are satisfied that the ELC did not err in finding that the units were not on riparian land, and that the enforcement order was unlawful, null and void,” ruled the judges.

The court however declined to award the developer Sh466 million as compensation. The Judges ruled that in the absence of pleaded special damages in the petition, the appellant was not entitled to award of special damages.

“We would accordingly affirm the decision of the ELC on this further ground,” reads the judgment.

Water authority

The court records show that from 2007, neither NEMA nor the Water Resources Authority alleged that the units had encroached on riparian land.

In the case, Superior Homes (Kenya) PLC, through lawyer Phillip Nyachoti had sought a compensation of Sh466,955,673 as special damages for loss of business and reputation, and interest as a result of WARMA enforcement order.

Nyachoti submitted that the enforcement order for the demolition of the units, occasioned the appellant a public relations disaster and financial loss for which the appellant was entitled to compensation.

However, the Water Resources Authority objected, arguing that ELC properly declined to award special damages because the loss and damage allegedly suffered by the appellant was occasioned by flooding.

The water authority had argued that Superior Homes was not entitled to special damages because those damages were not pleaded in the petition.