[1997] KEHC 2 (KLR)

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 standito 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 EnglandLondon: 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 Kiganofor the Plaintiff

Mr Owinofor the Defendant

May 8, 1997, Githinji Jdelivered 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 naturaeto 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 standito 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 Englandvol 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.