REPUBLIC OF KENYA
HIGH COURT AT NAIROBI ( MILIMANI LAW COURTS)
CIVIL CASE 706 OF 1997
NAIROBI GOLF HOTELS (KENYA) LTD V PELICAN ENGINEERING & CONSTRUCTION CO LTD
Water - requirement of permit for certain purposes – river diversion -
rights of riparian owner – capacity of the plaintiff to bring an action to
restrain the defendant from constructing a dam and diverting river water
- Water Act (cap 372) sections 3, 180 (2)
The defendant raised preliminary objections against the plaintiff’s
interlocutory injunction application which sought to restrain the defendant
from constructing a dam on Gatharani river and from diverting the river
water.
The defendant contended that under section 3 of the Water Act, water is
vested in the government and the plaintiff had no locus standi to bring the
suit. It was further submitted that the plaintiff should have lodged a
complaint with the Water Apportionment Board and that since the land
had been leased to another party the defendant had been wrongly sued.
Held:
1. The Water Act does not give any member of the public a right to
complain over the use of water by anybody in the absence of an
application for a permit.
2. The court found no provision in the Water Act which gives any member
of the public a right to complain to either the Water Apportionment
Board or to the Water Resources Authority for use of water by any
member of the public unless they have first applied for a permit.
3. Payment of a penalty as provided for under section 180(2) of the Water
Act does not affect the right of any other person to bring any action or
take any proceedings against the defendant for the alleged illegal
construction of the dam and alleged diversion of water.
4. The plaintiff by virtue of being a riparian owner could apply for
injunction under the common law to restrain the defendant, a non
riparian owner, for extra-ordinary use of water.
5. If the defendant had through a lease authorised another party to utlise
the land in a manner complained of by the plaintiff and the utilisation
of the land in that manner was going to cause permanent damage to the
plaintiff’s investment, the plaintiff had a cause of action against the
defendant as the head lessee at the time this suit was brought without
having to wait for the estate to fall into possession of the defendant in
the future.
Preliminary objection overruled.
Cases
No cases referred to.
Texts
Hailsham, Lord (1979) Halsbury’s Laws of England London: Butterworths
4th Edn Vol XXIV p 574 para 1028
Statutes
Water Act (Cap 372) sections 3, 35, 36 (2); 38; 74; 180 (2); 181
Advocates
Mr Kigano for the Plaintiff
Mr Owino for the Defendant
May 8, 1997, Githinji J delivered the following Ruling.
This is a preliminary objection raised against the plaintiff’s application
for an order of injunction dated 24.3.97.
Plaintiff filed a suit on 24.3.97 against the defendant claiming damages
and a permanent injunction to restrain the defendant from constructing a
dam on or across Gatharaini river and from trespassing on the plaintiff’s
land. On the same day, plaintiff filed an application for interlocutory
injunction to restrain the defendant from constructing a dam on Gatharaini
River and from diverting the River water and from trespassing on the
plaintiffs land.
On the same day, an exparte interlocutory injunction as prayed was granted
by Khamoni J. That exparte injunction is still in existence.
When the application came for hearing inter parties, Mr Owino for the
defendant raised a preliminary objection to the application.
The basis of the plaintiffs suit and the interlocutory injunction is in
summary that:
(a) Plaintiff owns land reference No.14883 on which it
has erected a prestigious and unique five star resort
hotel/club, conference facilities and an 18 hole golf club
of international repute known as “Windsor Golf and
Country Club” unparalleled elsewhere in Kenya.
(b) With a view to conserving nature, plaintiff has
natured, maintained and preserved indigenous trees on
the golf course.
(c) The boundary of the land is the centre line of
Gatharaini river which flows naturally from west to east
and that with the permission, inter alia, of Water
Apportionment Board, it has erected a dam (Windsor
dam) from which it derives water for the maintenance
of the golf course, the trees and grass on the premises.
(d) Further plaintiff is a riparian owner with natural
rights ex jure naturae to the use of the water from the
river.
(e) Defendant is the owner of land reference number
15153 curved from Kiambu Forest Reserve which land
does not border the Gatharaini river and is separated
from the river by a portion of the forest.
(f) From February 1997, defendant contrary to the Water
Act, erected a concrete reinforced wall across the river
up stream, erected a temporary water reservoir pending
construction of a dam, installing a water pump and
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 down stream of
Gatharaini river.
(h) Defendants actions are crippling the plaintiff’s use
of the Windsor dam and water rights causing the grass
on the golf course and vegetation to wither.
Those are of course allegations as the application and the suit has not
been heard.
Mr Mike Maina the Managing Director of the defendant has sworn a
replying affidavit. The defendant has also filed a defence. The defence is
a mere denial of all the allegations in the plaint except that defendant
admits that it is the owner of the land referred to by the plaintiff. All what
Mr Mike Maina states in the replying affidavit is that defendant has leased
the land to Valentine Growers and therefore defendant is wrongly sued.
The other thing Mr Mike Maina states is that plaintiff has come to court
with unclean hands as it has unlawfully and without permission blocked
the flow of waters of the river thereby obstructing and diverting the waters
of the river to waste. Defendant has raised four preliminary objections to
the application namely
(i) As by section 3 of the Water Act, water is vested in
the government, plaintiff has no locus standi to bring
the suit.
(ii) That it is the Water Apportionment Board which
determines the utilisation of water and therefore plaintiff
should have lodged a complaint with the Water
Apportionment Board.
(iii) That plaintiff can only come to court for judicial
review after all the administrative machinery under the
Water Act are exhausted.
(iv) That as the defendant has leased the land to
Valentine Growers - a firm; plaintiff can only sue
Valentine Growers and not the defendant.
Mr Muturi Kigano for the plaintiff has replied to the preliminary objection.
He contends inter alia, that High Court has original unlimited jurisdiction,
that plaintiff has permission from Water Apportionment Board; defendant
has not deponed that it has permission from Water Apportionment Board;
that defendant has not traversed the various breaches complained of; that
the lease was hurriedly registered on 3.4.97 and in any case the lease is
invalid in law; that the same Mike Maina MD of defendant is the
representative of Valentine Growers; that riparian rights lie against the
offending land owner and riparian owner can obtain an injunction to
restrain the diversion even without proof of damages.
Dealing with the first, second and third objections together, it is true that
every body of water in Kenya is vested in the government but that is as
section 3 of the Water Act provides subject to any rights of user to any
person granted under the Act or recognized as being vested in any other
person. As Mr. Kigano states, the government is a trustee for the general
public. As the government is the people, the body of water logically
belongs to the people but the government has to preserve it, control it and
apportion it for the general good of the people. It is aptly said that water is
life and no doubt that water is very valuable natural resource. The
government controls the use of water by requiring that permits be obtained
for some extra ordinary use of water. Such cases where permits are required
are one specified in section 35 of the Water Act and include cases of use
of water for irrigation. But by s 38 of the Act, a permit is not required for
the abstraction or use of water from any body of water for domestic
purposes by any persons having lawful access to the water and if such
abstraction is made without employment of works. This natural right to
use water for domestic purposes is subject to section 50 and 74 of the Act.
By section 50 of the Act a person cannot construct a well within 100
yards of any body of surface water or construct a well within half a mile
of another well. By section 74 of the Act, the government can declare any
areas a conservation area and refuse the extraction of water. A riparian
owner is a person who owns land on a bank of a river, or along a river or
bordering a river or contiguous to a river. Under the common law and as
permitted by section 38 of the Water Act, he has a right to take a reasonable
amount of water from a natural river as it flows past his land for ordinary
purposes such as domestic use which includes such things as watering his
animals, his garden. He can even construct a dam so long as it is not
within 100 yards of surface water. It may be that the wider right of riparian
owner under common law are limited by the Water Act but it is clear that
a riparian owner has the natural right to use the water adjacent to his land
for normal use.
For cases where a permit is required, it is an offence to use the water
without a permit (section 36 of the Act). For the use of water where a
permit is required it is the intended user who is required to apply to the
Water Apportionment Board for a permit and anybody objecting to the
issuing of a licence is required to file an objection. I can find no provision
in the Water Act which gives any member of public a right to complain to
either the Water Apportionment Board or to Water Resources Authority
for use of water by anybody in the absence of an application for a permit.
The objection that plaintiff should have exhausted the machinery
prescribed in the Water Act would have been valid if the defendant had
said that it applied for a permit from the Water Apportionment Board and
that plaintiff failed to file an objection or appeal. As the pleadings and
affidavits stand, the defendant has not said that it has applied for a permit
and that such a permit was duly granted.
If it is true, as plaintiff pleads,that the defendant has not obtained a permit
and if it is true that it has committed the acts complained of, then it would
have committed an offence under s 36(2) of the Water Act. If such is the
case, then the Minister or Water Resources Authority or the Water
Apportionment Board has power to prosecute the defendant or take any
civil proceedings against the defendant (section 181). But as section 180(2)
of the Act provides, the payment of any such penalty does not affect the
right of any other person to bring any action or take any proceedings
against the defendant for alleged illegal construction of the dam and alleged
diversion of water. Plaintiff is such a person and comes to court against
the defendants for the alleged illegal works and also as a riparian owner.
He has a right of action under s 180 (2) of the Act. Further, plaintiff by
virtue of being a riparian owner who alleges that defendant is not a riparian
owner can apply for injunction under the common law to restrain the
non-riparian for extra ordinary use of water for irrigation purposes.
Halsburys Laws of England vol 24 page 574 para 1028. As for the objection
that the suit and application cannot be maintained against the defendant
as defendant has leased the land to Valentine Growers, I note that the
defendant has been granted a 99 year lease from April, 1991. If the lease
to Valentine Growers is valid, (I am not going to decide on its validity) it
is for 10 years from 1.11.96 after which it will revert to the defendant for
use for over 80 years. One of the acts complained of by the plaintiff is
trespass to his land. The works complained of by plaintiff are of permanent
nature.It is my view that if the defendant has by the lease authorised
Valentine Growers to utilise the land in the manner complained of by the
plaintiff and if the utilization of the land in that manner is going to cause
permanent damage to the plaintiff’s investment, the plaintiff has a cause
of action against the head lessee now without waiting for the estate to fall
in possession of the defendant in future.
In any case, it is not clear as to who is dealing with the defendants land as
Mr Mike Maina is involved both in the defendant and in Valentine Growers
and seems to wear two hats. If Valentine Grower feel that they have an
interest to protect it as a firm, it has a right to apply to be joined as a
defendant to protect those interests.
For those reasons the preliminary objection has no merit and is overruled
with costs to the plaintiff. I order that the application do proceed to hearing
on merits.