By Wahome Thuku

Devan Plaza is a new 10-storey ultramodern structure towering over Chiromo Road in Westlands, Nairobi.

The building put up by three brothers at a cost of Sh250million is the subject of a legal dispute at the High Court.

The three brothers, Nilesh Devan Shah, Ratilal Devan Shah and Hashwin Devan Shah decided to put up the complex of shops and offices a few years ago. They secured Sh90 million from I&M Bank for the project. Their initial plan was to build eight storeys including the basement and the ground floors.

In 2008, they carried out an environmental survey as required by law. Their immediate neighbours, Diasta Investments Ltd and others were invited to submit comments as required.

They then submitted the Environment Impact Assessment Project report to the National Environmental Management Authority (NEMA) for approval.

NEMA issued them with a letter of approval on February 17, 2009, and an Environmental Impact Assessment (EIA) licence on April 28, 2009. They were to strictly adhere to the conditions on the report and the EIA licence.

The Devan brothers, however, put up a 10-floor building including the basement and the ground floor prompting Diasta Investments Ltd to seek legal redress, being the immediate neighbours.

In July, last year, Diasta Investments filed a suit seeking the Devan’s stopped from carrying out further construction.

Through lawyer Philip Nyachoti, the company claimed Devan brothers were carrying out the construction work at night, Sundays and public holidays contrary to NEMA conditions and posing great risk to their property worth hundreds of millions of shillings.

Objections

Diasta Investment director, Priten Patel, claimed in an affidavit that he had made complaints to NEMA, the City Council of Nairobi and even Kenya Anti-Corruption Commission but no action had been taken.

The company also sought injunction to have them stopped from applying for or obtaining occupation certificates for the premises and an order directing them to demolish the two extra floors not included in the report.

It also asked that the Devan’s be ordered to consult them and other neighbors when planning or carrying out any further developments on the land and a declaration the their right to clean health and that of their tenants and occupants was being violated and needed protection.

On July 20, last year, the three brothers filed their objection.

Ratilal claims that Diasta Investments were the only ones who opposed the project saying it would impose a heavy load on the local infrastructure, increase traffic jam and cause water shortage.

Initially under the original approved building plans, the said building was to have eight floors but as the construction work progressed, this was changed further to include two floors.

He claimed the revised plans were submitted to the council and approved on September 27, 2010.

“Due to an inadvertent oversight on part of our professional advisers who dialed to alert us that it was required, my brothers and I failed to apply to NEMA for a variation of the Environment Impact Assessment License.”

He said they applied for it on July 19, 2011. By that time the case had already been instituted.

Ratilal said the construction work had been completed and the only outstanding matters were installation of lifts and interior finishing.

He said they had invested Sh250 million in the project including the Sh90 million loan from I&M Bank.

“My brothers and I stand to lose a minimum estimate of Sh4 million a month if the outstanding work is not completed,” he pleaded. He denied that any construction was carried out at night saying they complied fully with NEMA conditions.

Ratilal argued that Diasta Investments had not demonstrated how their property had been endangered. And they had not produced evidence of how their right to clean and healthy environment had been breached by the construction of the two extra floors.

On July 26, last year, the parties filed consent and the court ordered that the defendants be restrained from carrying any further construction work on the 7th and 8th floors safe for installation of electricity and lifts. The defendants were also ordered not to apply for occupation certificate for the two extra floors until the hearing and final determination of the application.

On December 8, last year, NEMA issued a certificate of variation of the EIA licence to include the extra two floors. The variation was effective from July 19, last year, only a week after the suit had been filed.

On December 22, last year, the council issued the three brothers with a letter confirming the construction had been procedurally approved on September 27, 2010.

Council inspection

On January 1, this year, the council wrote to them confirming they had visited the building on December 21, last year, and established it had been satisfactorily completed up to the 6th floor as per approved plan.

On January 10, this year, the council also issued the three brothers with a Partial Certificate of Occupation for the six floors approved on September 27, 2010, valid for six months.

On March 15, Diasta Investments filed an application to enjoin the City Council of Nairobi and NEMA in the suit to enable the court effectively adjudicate on the matter. The two were the key authorities involved in the construction work.

The council filed an objection to the application. In an affidavit, CCN Planning Director Tom Odongo, said the construction was approved by the council as per the law and the partial occupation certificate issued hence the application had no merit and should be dismissed.

The Devan brothers also opposed the application for enjoinment of the council and NEMA. But NEMA did not file any response to the application and it was deemed they did not object.

Lawyer Nyachoti argued that the Council and NEMA had to be enjoined to explain how the approval documents were issued after the suit had been filed and without consulting his client.

More floors more trouble

Nyachoti argued that the court had power to give the appropriate remedy under Article 70 of the Constitution when the right to a healthy environment had been violated.

The Devan brothers through lawyer Walter Amoko argued there were other mechanisms of addressing the issues raised by Diasta Investments against the two public bodies.

Amoko said there was a tribunal established to hear and determine appeals from decisions made by NEMA.

Lady Justice Pauline Nyamweya allowed NEMA and the council to be enjoined and Diasta Investments Ltd to file amended papers within 30 days.

The case now goes for hearing. In the meantime, the three Devan brothers are still stopped from proceeding with any work on the controversial 7th and 8th floors of the building pending determination of the suit. The more the floors the more the controversies.