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Dispute at upmarket Migaa puts zoning laws to test

REAL ESTATE
By Frankline Sunday | July 29th 2021

Superior Cottage houses at Mitini Scapes, April 9, 2015. [Wilberforce Okwiri, Standard]

From the onset, it was clear that the meeting at the lush plains on Migaa Golf Estate would yield little headway for both sides.

Sycamore Pine Ltd had invited the residents of the upmarket gated community to give their views on an environmental impact assessment (EIA) report for the construction of 1,956 residential apartments at the heart of the estate. 

Before the meeting could take off, however, one of the homeowners and an official of the Migaa Residents Association who identified herself as Sheila, took to the microphone with questions the developers found difficult to address. 

“Before today, we requested an agenda for this meeting but it was not shared with us. We have not come here for a presentation,” she said.

“You cannot call us here on a public holiday and give us 10 minutes to talk, so we reject this agenda.”

The meeting stretched on for three-and-a-half hours during which tens of residents of Migaa Golf Estate took the developers to task over the proposal to erect affordable housing units in 28 blocks, with up to 10 floors each, on the controlled development. 

Some residents questioned the fairness of paying up to Sh20 million for half an acre to access exclusive golfing amenities only to have Sh3 million high-rise apartments rise up next to them.

A section of Migaa golf course. [Edward Kiplimo, Standard]

Others questioned the environmental sustainability of cramming over 10,000 residents in the 28 blocks of flats.

One of the residents held up a jar of muddy water, claiming it came from their taps despite the promise of high-end amenities that Home Afrika promised while selling the property. 

At the end of the meeting, it was clear that nothing had been resolved.

The developers tried to convince the residents that the affordable housing units would not interfere with the value of their property, while the residents remained defiant that they would not allow them to be built.

Last month, the matter came up for hearing in court, a case that could set the precedent on who, between developers and homeowners, holds the final rights to modify the master plan on controlled developments. 

In the suit filed under a certificate of urgency, Sycamore Pine is accused of unlawfully and irregularly starting construction of apartment blocks without planning approvals or consulting the residents of the golfing estate. 

“The commencement of the project and the construction thereon are being constructed in violation of the registered master plan of the gated Migaa Integrated Golf Estate and in direct contravention of Section 56 and 57 of the Physical and Land Use Planning Act, 2019,” says the petition.

A section of Migaa golf course. [Edward Kiplimo, Standard]

The residents want the Environment and Land Court in Kiambu to stop the selling, advertisement and construction of the high-rise apartments pending the hearing and determination of the application. 

“The first respondent (Sycamore Pine Ltd) has in collusion with the second and third respondents (Home Afrika and Kiambu County respectively) commenced construction of the impugned project of the high density low-cost 1,956 residential apartments in the commercial node area within the Migaa Integrated Golf Estate where construction of low-cost blocks of residential apartments is outlawed,” the applicants say. 

“Further construction in the vicinity of the area of the proposed development will lead to major environmental challenges including land degradation, reduction or loss of biodiversity and destruction of the riparian reserve and the ecosystem.” 

Reduce value

The residents also say the development would reduce the value of their homes and subject them to loss of property contrary to Article 40 of the Constitution. 

Alongside Sycamore Pine Ltd, the suit lists the National Environment Management Authority (Nema) as an interested party for approving the EIA without the consultation of Migaa homeowners. 

According to the petition, Migaa Estate’s zoning policy sets out five zones, with each controlled in compliance with the master plan.

“It was on the basis of these representations and the promise of strict implementation and compliance with the zoning policy as contained in the master plan that the petitioners and all the other homeowners of the estate bought into the plan and chose to invest by buying their parcels of land and building their dream homes within the controlled zones of the estate,” says the petition. 

“The development is of such a scale and will house such a large number of persons and impose an unsustainable strain on the physical resources and amenities of the estate, including water supply and waste disposal facilities.”

Superior Cottage houses at Mitini Scapes. April 9, 2015. [Wilberforce Okwiri, Standard]

Last week, the court in Kiambu handed partial victory to Migaa residents by issuing an injunction ordering Sycamore Pine to halt development on the disputed project until the case is determined.

Home Afrika Chief Executive Dan Awendo, however, says the proposed Samara Estate is within the master plan and disputed claims that it would devalue the property of homeowners in Migaa Golf Estate.

“You can’t have a place where you have only one market in mind because those high-income people will require workers, support staff and we have a hospital, a hotel and similar amenities to cater for a mixed-use residential area,” he told Real Estate in a phone interview.

“This is a plan we had from the onset and we created an adjustment within the master plan so that we can eventually develop affordable housing to accommodate middle-income groups.

“The apartments are outside the estate and they are affordable housing units, not low-income, so there is no issue of devaluing the property.” 

Mr Awendo further said the deal with Sycamore Pine is a long-term partnership and disputed selling the 17.2 acres to the developers.

“The entire estate will take Sh7 billion to complete,” he said. “This money must come from somewhere and even if you are going to borrow you have to pay back, and the only source of liquidity is sales.

“We knew that some of our sales will come from selling of plots and some of the revenue would come from affordable housing units.”

Some of the superior cottage houses at Mitini Scapes. April 9, 2015. [Wilberforce Okwiri, Standard]

The case is a test for Nairobi’s zoning and land use laws that have over the years come under scrutiny as the city’s growing population puts a strain on estates previously considered exclusive and the reserve of the wealthy.      

In January this year, property development firm Cytonn Investments lost a case in which the County Government of Nairobi cancelled approvals to develop a 35-floor three-pronged tower on four acres at the junction of Argwings Kodhek and Elgeyo-Marakwet roads. 

The Sh20-billion development was opposed by the Kilimani Residents Association and Cavina School, a British Preparatory School located next to the proposed site.

According to court papers, Nairobi County said it cancelled the permit issued earlier because Cytonn failed to conduct public participation on the proposed Cytonn Towers and kept Kilimani residents in the dark.

“There were objections made by the Kilimani area residents to the proposed development on grounds that the intended development was prejudicial to their right to a clean environment, and also on grounds that the infrastructure outlay could not support a development of the profile and magnitude proposed,” explained Justus Kathenge, a county officer, in an affidavit.

Flouted requirements

In addition to this, Cytonn was accused of flouting the Kilimani area zoning requirements and did not address the health and safety of the children of Cavina School during and after construction and the ensuing noise.

According to the county government, the zoning permits a maximum height of four storeys, contrary to Cytonn Towers’ proposed 35 storeys in the three towers.

Earlier this month, Nairobi Metropolitan Service (NMS) published a draft Land Use Policy to guide the development of both public and private property around the city and peri-urban areas. 

Apartments at Mitini Scapes. April 9, 2015. [Wilberforce Okwiri, Standard]

NMS says the policy has been necessitated by inadequate planning in urban and peri-urban areas that has resulted into haphazard development, underutilisation and inappropriate settlement systems. 

“Inadequate urbanisation policies and planning guidelines have resulted to urban sprawl and the gradual transformation of prime agricultural land into urban areas,” says the draft policy.

“There is also the challenge of inadequate institutional structure to plan and implement physical development plans, both for the urban and peri-urban areas.”

It said the situation was exacerbated by the seeming duplicity and conflicts in the assignment of the mandate for control and administration of the physical planning function at the national level.

The policy recommends the implementation of physical planning legislation to guide urban and peri-urban planning as well as the establishment of adequate dispute resolution mechanisms to handle land use cases.

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