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Nairobi Golf Hotels (Kenya) Ltd (Plaintiff) v. Pelican Engineering and Construction Co. Ltd (Defendant)

Country/Territory
Kenya
Type of court
National - higher court
Date
May 8, 1997
Source
UNEP, InforMEA
Court name
High Court of Kenya at Nairobi
Judge
Githinji, E.M.
Reference number
Civil Case No. 706 of 1997
Language
English
Subject
Agricultural & rural development, Cultivated plants, Water, Legal questions
Keyword
Legal proceedings/administrative proceedings Dam Irrigation Water abstraction Lease Authorization/permit Water rights
Abstract
This was a preliminary objection raised against the plaintiff’s application for an order of injunction. The plaintiff owned land on which it erected a resort hotel/club, conference facilities and an 18-hole golf course. The plaintiff claimed that it conserved nature by maintaining indigenous vegetation. The boundary of the land was the centre of the Gatharani River, which flows from west to east. The plaintiff, with the permission of the Water Apportionment Board, erected a dam from which it derived water for the maintenance of the golf course. The plaintiff claimed rights to the use pf water from the river as a riparian owner. The defendant, without permission from the Water Apportionment Board, erected a concrete reinforced wall across the river upstream, and erected a temporary water reservoir pending construction of a dam. It installed a water pump and was diverting large quantities of water from the river via the reservoir to its land for irrigated floricultural and horticultural farming and water storage reservoirs thereby extinguishing the natural flow downstream of Gatharani River. The defendant’s actions adversely affected the plaintiff’s use of its own dam and water rights causing the grass on the Golf course and the vegetation to wither. The plaintiff filed a suit against the defendant claiming damages and a permanent injunction to restrain the defendant from constructing such dam and from trespassing on the plaintiff’s land. On the same day, the plaintiff filed an application for an injunction to restrain the defendant from constructing a dam on Gatharani river, from diverting the river water, and from trespassing on the plaintiff’s land. This injunction was granted and the defendant raised a series of preliminary objections, including the plaintiff’s lack of standing since, according to the Water Act, water is vested in the Government. The defendant argued that as the Water Apportionment Board is charged with determining the utilization of water, the plaintiff should have lodged a compliant with that body and that the plaintiff could only come to court to seek judicial review after all the administrative machinery under the Water Act had been exhausted. Finally, because the defendant leased the land to a third party responsible for the actions affecting the plaintiff, the defendant argued that it had been sued wrongly. The court held that although it was true that the water in Kenya was vested in the Government, Section 3 of the Water Act provided that this was subject to any rights of user granted under the Act or recognized as being vested in any other person. This being so, the court implied a duty to preserve, control and apportion water for the general good of the peop
Full text
Jud.Dec.Nat.pre.pdf
Available in
UNEP/UNDP/Dutch Government Joint Project on Environmental Law and Institutions in Africa, Compendium of Judicial Decisions on Matters related to Environment, National Decisions, Volume I, Page 432