Nairobi county, residents clash over apartments height

High-rise buildings in Kilimani, Nairobi. [File, Standard]

Nairobi County has been approving unregulated high-rise apartments using a draft that was only passed into law last month, the Supreme Court was told on Thursday.

During the hearing on Thursday, Mbaazi Residents stated that it was clear that the county was violating its 2004 guidelines, which had zoned the city and had placed four floors as the maximum construction in Lavington and Kileleshwa areas.

Lawyer Dudley Ochiel said that the Johnson Sakaja-led County could not apply the law backwards in order to justify authorization and construction of buildings that had exceeded the allowable floors.

“When they used this policy, it was not approved. We argue that the ELC used an inchoate policy to limit the petitioner’s right. By allowing the building to go on without applicable law by using the draft policy, the Court of Appeal violated the Constitution. Our case is that both courts were wrong by applying a draft policy which had not been approved. The respondents, in the 2004 guidelines, were to limit the building to four floors,” argued Mbaazi’s lawyer Dudley Ochiel.

In reply, the county’s lawyer Jamal Bake told Chief Justice Martha Koome and Justices Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola, William Ouko and Mohamed Warsame that the county used a 2026 policy to approve the construction within the city. He claimed that the policy was a replica of a 2021 zoning document, which in effect allowed the county to allow construction of such high buildings.

“None of us introduced the 2021 zoning ordinance in the case. They have not demonstrated which zoning policy was in use then. In June this year, the county minister gazetted the zoning policy. This is the applicable policy, and this policy is the same word for word with the impugned 2021 development policy,” replied Bake.

While also urging the court to dismiss the case, lawyer Daniel Chebon argued that the approvals by the National Environment Management Authority (NEMA) and the county are provisional as they can intervene whenever there are complaints.

The landscape of Nairobi City is gradually changing with high-rise buildings taking over.

Sections of the city, which were controlled, have now been turned into mass residential areas with some of those who dwell in townhouses either being forced to erect their own apartments or relocate.

Those who have remained have to deal with a lack of natural light and a lack of privacy from unregulated high-rise buildings.

The proliferation of informal settlements, inadequate infrastructural services, congestion, environmental degradation, unplanned urban settlements, pressure on land, and numerous conflicts are the face of Nairobi.

This chaotic development has drawn unending cases with the National Environment Management Authority and Nairobi County being called out for unsupervised development.

According to Millennium, Mbaazi, the project is bound to affect the privacy and lives of the neighbours owing to the high number of units set to be built.

The residents complained that the air quality in the area would be affected owing to the number of vehicles owned by the tenants of the property being built by Metricon Limited.

Initially, NEMA had approved 336 units, but Nairobi County increased the same with two letters from the county.

The county, however. ordered developers to stop construction and conduct public participation. In court, the residents argued that the developer allegedly ignored the county’s directive.

“The intended development will infringe the petitioners’ members right to a clean and healthy environment having regard to the developer’s intent to cram up to 512 housing units on one acre of plot in disregard of the zoning regulations, scarce amenities, and resources,” the residents complained.

The residents also lamented that putting such huge apartments would cut-off natural sunlight, affect a circulation; emit exhaust fumes from the anticipated numerous vehicles and interrupt aerial communication equipment, thus violating their constitutional right to a clean and healthy environment.

To avoid any conflicts, the residents through their leadership erected billboards warning developers from going above four floors.

In court, they argued that beacon-to-beacon high-rise development threatens the structural integrity of neighbouring properties, violates setback requirements, obstructs access to natural light, and strains existing infrastructure, with potentially irreversible damages.

“All developers are notified of zoning provisions limiting developments to four floors. Developers who violate this rule will be prosecuted,” the billboards read in part.

The notices indicate that the one serene neighborhood is fighting to keep its state and environment from overzealous developers chasing after the skies.

On the other hand, Metricon argued that it had clearance to put up the buildings in the area. The firm also argued that the case did not raise any constitutional issue or that of public importance. Yu Tang stated that the case was about re-telling what had transpired before the Environment Court and the Court of Appeal.

Nairobi County classified the areas, including Lavington, Kileleshwa, and Runda, under Zone Four, which restricted developers from building beyond four floors.

The situation is however, changing with apartments going up beyond the required height or floors - thus infringing on the county regulations and privacy that the affluent had been enjoying.

The unregulated development is now causing jitters that the once leafy estate is losing its allure.