Microsoft Word - Casebook on Environmental law

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 706 OF 1997

NAIROBI GOLF HOTELS (KENYA) LTD.................... APPLICANT

VERSUS

PELICAN ENGINEERING AND CONSTRUCTION

CO. LTD.............................................................. RESPONDENT

BEFORE: THE HON. JUDGE MR. E.M. GITHINJI

Civil Procedure: Locus stand - whether the ownership of water is vested in government.
Whether there is a cause of action against the respondent.
Environmental Law: Who determines the utilization of water?

On 24th March 1997, the plaintiff filed a suit against the defendant claiming damages and a
permanent injunction to restrain the defendant from constructing a dam on or across Gathani
River and from trespassing on the plaintiff’s land. On the same day, the plaintiff filed an
interlocutory injunction restraining the defendant from diverting the river water on the land
because it was interfering with his riparian rights causing the grass on his golf course and
vegetation to wither. When the matter came up for hearing, the defendants denied all the
allegations and instead raised a preliminary objection to the plaintiff’s application namely;

1. that water is vested in the government and plaintiff has no locus standi;


2. that it’s the water appointment board that determined utilisation of water;


3. that the plaintiff can only seek judicial review after all the administrative machinery
   under the water act are exhausted;


4. That since the defendant had leased the land to Valentine Growers; the plaintiff had
   no cause of action against him.

HELD:

1. The government controls the use of water by requiring that permits be obtained for
   extra ordinary use of water short of which constitutes an offence.


2. The objection that the plaintiff should have exhausted the machinery prescribed in
   the Water Act would be valid if the defendant had said that it applied for the permit
   from the board and that the plaintiff failed to file an objection which is not the case.


3. The plaintiff by being a riparian owner can apply for an injunction under common
   law to restrain the non-riparian for extra ordinary use of water for irrigation purposes.


4. The defendant has by the lease authorised to Valentine Growers to utilize the land in
   the manner complained of by the plaintiff which may cause permanent damage to the
   plaintiff’s investment, therefore the plaintiff has a cause of action against the head
   lessee.