Court stops construction of apartment near KDF headquarters

A planned 12-storey apartment near the Kenya Defence Forces headquarters and the Chinese Embassy in Nairobi's Kilimani has been halted after the Environment and Land Court declared Nairobi City County's approvals unlawful.

In a judgment delivered by Justice Oscar Angote yesterday ruled in favour of Tom Brown Limited and former Kilome MP John Harun Mwau quashing all approvals issued for the proposed 42-unit apartment development on L.R. No. 209/1458/2 and permanently stopping the project.

Justice Angote found that the development approvals were issued in violation of planning laws and mandatory public participation requirements, rendering the process unlawful and procedurally flawed. 

“The court finds that the development approvals cannot be said to have been issued lawfully, reasonably, or in conformity with the governing planning framework," he stated. 

The petitioners led by MP Mwau challenged the approvals issued by Nairobi City County and to Nova Realty Group Limited, arguing that the project threatened the character of the low-density neighbourhood and posed security concerns because the property lies within a safeguarded zone near the Ministry of Defence headquarters and the Chinese Embassy.

They further argued that the county approved the project without complying with mandatory planning procedures, including public participation and consultations required under the Physical and Land Use Planning Act.

Justice Angote agreed, finding that the  county's approval process was fundamentally flawed.

"The approvals granted by the 2nd Respondent(Nairobi County) in respect of the proposed development on L.R. No. 209/1458/2 were illegal, unprocedural and unreasonable," the judge ruled.

The court also struck out the developer's replying affidavit after finding it had been sworn by Hassan Abdi Mohamed without evidence that he was a registered director of Nova Realty Group Limited.

"The 3rd Respondent's Replying Affidavit is incompetent and is hereby struck out," Justice Angote held.

Without a valid response from the developer, the court proceeded to determine the petition based on the evidence properly before it.

On the planning process, the judge found that the respondents failed to demonstrate that the property's earlier change of user from single dwelling residential to professional offices had lawfully reverted before fresh approval was granted for a multi-storey apartment block.

The court held that every change of user is a separate statutory process requiring independent compliance with planning laws.

Justice Angote also found that Nairobi City County failed to prove it conducted adequate public participation before approving the project.

The court noted there was no satisfactory evidence that a site notice had been erected to notify neighbouring residents of the proposed development.

The judge further found that the Ministry of Defence was never consulted despite the property falling within a safeguarded area where planning applications must be circulated to security agencies before approval.

The judgment also relied on a May 17, 2022 letter from the then Nairobi Metropolitan Services (NMS), which had deferred the building plans because the developer had not obtained clearance from the Ministry of Defence or a no-objection letter from neighbouring property owners.

Justice Angote said the respondents failed to demonstrate that those deficiencies had been addressed before the approvals were eventually issued.

Consequently, the court declared that the change of user approval and development permissions violated the petitioners' constitutional rights to fair administrative action, access to justice and a clean and healthy environment.

The court issued an order quashing all planning approvals, development permissions and approved building plans relating to the project.

Justice Angote also granted a permanent injunction restraining Nova Realty Group Limited, its agents or anyone acting on its behalf from undertaking any further development on the property.