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How the wealthy are losing their privacy to middle class

By Peter Theuri | May 13th 2021
Early evening Calgary Skyline with homes in bottom of frame [Courtesy]

You have bought a piece of land in a prime suburb of the city and gone ahead to build yourself a dream bungalow.

Like your neighbours, you have signed an agreement that bars anyone from constructing a high-rise building within the zone.

Suffice to say, you have parted with a fortune in exchange for the exclusivity. This is your dream life, one of peace and quiet. 

And then someone comes and erects a skyscraper across the fence.

They have breached the rules, and the serenity for which you paid so much is gone.

This is increasingly happening within Nairobi and its environs, and has led to feuds between wealthy home owners and the new residents.

The middle class is invading the spaces meant for the wealthy, starting class wars that culminate in endless court battles, and irreparable damage to relationships between the haves and the have-nots.

In a city where many people believe property is overpriced (land economist George King’oriah insists it has been for some time now) the neglect of zoning regulations is barely tolerable.

In freehold land ownership, where the owner holds the property in perpetuity without payment of annual fees or rates, some conditions can be imposed on the purchaser of a piece of the land to protect amenity and privacy, and to maintain the market value of the rest of the property.

This is referred to as a restrictive covenant.

“Typical examples of a restrictive covenant would be conditions on the maximum number and the type of buildings to be erected on the land, and obligations such as fencing or tree planting requirements,” says Prof King’oriah.

But as time passes, the restrictive covenant may no longer enhance the value of the property because the surrounding area has altered in character.

“The covenant may be discharged or modified by agreement of the parties concerned, or by application to the Lands Tribunal,” King'oriah says.

Beatrice Wacuka, a research analyst at real estate developers Superior Homes, says some areas are restricted but there is laxity in implementation of the regulation.

“When they build skyscrapers, it affects the privacy of a lot of people in those areas where such highrises were not supposed to come up at all," she says.

Some changes in regulations might have occurred along the way, paving way for the development of skyscrapers, she says.

This is because all building plans have to go through the departments of lands and physical planning in the county government for approval.

Plans that do not meet the threshold are not meant to be approved.

“Sometimes it is just a matter of the authorities not implementing the regulations,” Ms Wacuka says, adding that corruption severely hampers service delivery in the property sector.

A developer seeking to construct a house for rent or sale will go for a high-rise building to maximise the investment returns. But in some areas this densification is restricted.

“We do not have skycrapers in Karen, they are not allowed following the local physical development plan," says Rosebell Karobia of the Karen Langata District Association (KLDA).

"But of course when we get such proposals, we are ready to object them." 

She says that architects, developers and environment experts who know the zoning regulations of some areas such as Karen would be faulted for coming up with plans of structures that do not align to the regulations.

“Also to blame would be regulatory bodies who approve development of high-density buildings and they know Karen is a low-density residential area.”

Organisations such as KLDA are formed by dwellers of an estate to, among other roles, check the developments and ensure that people comply with the area plans.

“The role of KLDA is simple in enforcing development. We have a guiding document, the Karen Local Physical Development Plan, which is valid until another one replaces it," says Ms Karobia.

"Our role is to look at whether the development is following the plan."

Wacuka says Kenya lacks a masterplan that would make it easy for everyone to understand what building plans are acceptable in various regions.

“There is no updated record of regulations available to the public. Very little public awareness is done.”

Demolitions that have rocked the city over the years are an indication that there have been many illegal approvals of plans.

Owners of property can sue if a development next to them contravenes the local physical development plan. 

One of the privileges that an owner of a piece of land has over the other - which is often overlooked - is the right to access light.

“A freeholder may be prevented from building on his land in a position that will reduce the access of light to windows of a property in the adjoining land,” says King’oriah.

As such, bringing up a building that blocks another from light is a legal breach that a property owner can sue for.


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