Riparian reserves: Encroachment

The rains are pounding. And floods are here, threatening lives and property. Yet again! While a number of factors contribute to the threat, a major one remains the obstruction of river reserves, popularly known as riparian reserves. Semi-permanent, and sometimes permanent developments which divert fast flowing flood water with adverse consequences, aren’t uncommon along rivers streaming through densely populated urban areas. In trying to address the matter, Cabinet Secretaries to line ministries responsible for matters environment, water, lands and internal security have often talked tough, finger pointed and driven evictions.

Need for harmonised laws

Usually, those with businesses and residences deemed to be on the riparian reserves have taken the brunt of such evictions. Understandably, resistance and litigation follows. While perhaps well intended, such kneejerk reactions may have been informed by either ignorance or misinformation about Kenya’s legal framework surrounding riparian reserves. This unfortunate approach was witnessed during the NARC regime under the late President Mwai Kibaki, the Jubilee regime under retired President Uhuru Kenyatta and is getting replicated currently. One hopes that this matter will receive a more objective approach. Kenya needs a reliable policy and legal framework to govern the protection and management of reserves next to rivers, lakes and oceans. At the moment, we have different sectoral laws on these reserves, formulated at different times. They are discordant and need to be harmonized. Indeed, technical experts, parliament and even the courts have advised as much.

Technical Advisory Committee Report

A 2011 draft report by a technical advisory committee constituted by experts from the key line ministries and agencies responsible for the determination and management of reserves to water bodies in Kenya addressed the matter and made elaborate recommendations. The report recommends widths to be respected for various water bodies, and which would inform the harmonization of the discordant laws. This report was a good start, but hasn’t been adopted for implementation.

Parliamentary Report

Parliament, through a 2019 report by the Departmental Committee on Environment and Natural Resources, observed that the measurement and management of riparian reserves in Kenya currently falls under the Survey, Agriculture, Water, Physical and Land Use Planning and the Environmental Management and Coordination Acts. Parliament further observed that the laws provide for different riparian reserve distances, depending on a sector’s mandate and priority. Consequently, parliament recommended that the Ministry of Water and Sanitation initiates a multi-agency discussion with key stakeholders to harmonize the definition of riparian land to avoid conflict in the implementation by the various government agencies on matters regarding riparian conservation.

Environment and Land Court

The Environment and Land Court has also weighed in on these reserves. In a 2019 ruling to a matter touching on Kirichwa Kubwa river in Nairobi, the court agreed with a petitioner that there are conflicting legal provisions on the measurement of riparian reserves in Kenya, and there’s therefore need for Parliament to harmonise the different laws to guide surveyors in determining the boundaries of privately held land adjacent to rivers and other water bodies. Let’s now handle this.

Dated: 5th December, 2024