Home owners, developer lock horns

Fourways Junction residential estate is a prime upmarket estate newly put up by Muga Developers company on Kiambu Road, in Kiambu County.

The gated-community estate has since 2009 gained popularity among United Nations Environment Programme (Unep) staff due to its high security standards and proximity to their headquarters in Gigiri.

But since September this year the home owners and residents have been locked in a protracted legal battle with the developer over the management of the estate and alleged failure to provide key services and facilities.

The estate was marketed for sale by developers' agent Suraya Property Developers. Under the sale agreements with individual home buyers, Muga Developers Ltd were required to put up villas, Apartments, Office Blocks, a Shopping Mall, a Hotel, a Nursery School and car park, domestic staff quarters, developed gardens, communal swimming pool, a club house, playground and other amenities.

The developer incorporated two companies, Fourways Junction Residential Management Ltd and Fourways Junction Service Ltd to provide management services within the various courts. These services included maintenance and upkeep of the common access roads, provision of security, access control parking maintenance, garbage collection, sewer management and pest control and other services.

The sale agreement also provided that the home owners would be shareholders in the management companies. They would have free and uninterrupted passage of water, sewerage, drainage, gas, electricity, garbage, artificially heatedor cooled air and other services for the time being existing within the estate.

Raised acrimony

Further it stated that they would pay monthly service charges of between Sh4000 and Sh5000. Every year, the two management companies would compute the costs and expenses incurred in the management of the service charge paid and have them audited. The two companies would notify the home owners and residents of any amount owing by December 31, every year.

Following the management dispute, the residents sued Muga Developers, the two management companies and the estate contractor China Wu Yi Company in September. The move raised acrimony between residents and the developer.

On November 29, the developer issued a circular notifying the homeowners and residents that they were handing over the estate management company to them. All the service providers and their staff had been asked to terminate services by December 31, 2014, the circular indicated.

Some 11 representatives of the residents, led by their Chairman Joshua Wathanga, filed an urgent application at the High Court in Nairobi to have the developer restrained from handing over the management services to them. They also sought orders to have the developer compelled to continue providing the services pending the hearing and determination of the application and the entire suit. The application went before Justice David Onyancha.

They argued that the developer or his agents had no right to hand over the estate management company to residents, saying it would be illegal and would violate the terms, conditions and covenants of the various sale agreements.

In his affidavit, Dr Wathanga claimed that the developer refused to complete the sale agreement or to honour and fulfill the terms, conditions and covenants of the agreements. They had failed and or refused to construct and develop an office block, shopping mall, hotel, nursery school, gardens, communal swimming pool, club house, playground and other amenities, he said.

"It is clear from the contents of the circular that the respondents intend to abrogate from their duties and obligations to manage the estate and in so doing, breaching and violating the terms conditions and covenants of the sale agreement and the leases where they are active players," the residents' representatives argued.

"It is not known to whom the management company is being handed over to. The services currently provided and managed by the estate management company will come to a complete standstill, rendering the estate inhospitable," Dr Wathanga said.

Retaliatory act

He said residents would not know when and where to remit their service charge and the value and status of the estate would be adversely affected.

Their lawyer, Alfred Ndambiri, said the decision to hand over the estate management company is illegal and untenable given that the applicants were never involved in making it. "The applicants believe the decision is a retaliatory act by the respondents for the applicants decision to file this suit," he said.

On Friday, Justice Onyancha restrained Muga Developers from handing over the two companies to the residence until the application is determined. The court further ordered the developer to continue providing estate management services to the applicants and the residents.

That case will be mentioned on January 15, 2015 when a hearing date would be set.

The writer is a court reporter with the Standard Group.

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