Apartment owners have a right to be consulted over any additional development on their property.
The order was made by Justice Sila Munyao last week in a judgment stopping a developer from building additional floors on top of existing apartment blocks which had been sold to an individual in Nyali.
Justice Munyao made the order after Khalid Hussein Rehman successfully sued Ahmed Jan Mohamed Sulieman Luhar for initiating the construction of additional units above one of the existing blocks they own communally.
“Whichever way you look at it, the proposed additional development by the defendant cannot be allowed to stand. I am persuaded that the plaintiff has made out a case for a declaration that the proposed construction by the defendant is unlawful and illegal,” said Justice Munyao.
The judge found that Ahmed, who owns three blocks in Nyali, can only proceed with the construction of additional flats if he complies with the law touching on property ownership.
The requirements Ahmed is supposed to follow include consulting the owners of the units he had sold before embarking on the construction of additional apartments.
Before Justice Munyao gave this order, Khalid Hussein Rehman went to court in 2016 and obtained a temporary order stopping Ahmed Jan Mohamed from putting additional flats on top of one of the buildings on his plot number 13,400 Mainland North Mombasa County.
Rehman got the orders after his lawyer Gikandi Ngibuini applied for it, claiming the developer, Ahmed Jan Mohamed, had infringed on his right by failing to consult him before he started the construction of another apartment on top of one of the blocks in Nyali. Gikandi told the court that his client wanted the court to stop the developer from putting up an additional apartment on top of one of the blocks in the compound as it would stop him from enjoying a view of the ocean.
Gikandi told the court despite his client having raised the matter with the developer when he started the development, the developer ignored the plea and proceeded with the construction without consultation.
The plaintiff who lives in Toronto, Canada, through Afzal Hussein Rehman he had appointed as his attorney, gave evidence which demonstrated how the construction will affect Khalid Hussein Rehman.
Gikandi explained to the court that legally, his client was entitled to the rooftop area, fence, gate, drive away, stairs and parking as part of communal ownership of both of them, which should not be interfered with by the developer.
The lawyer explained that despite his client having written a letter to the developer in 2014 over issues of approval from the county government, the developer ignored him and proceeded with the construction without consulting him.
“My client wrote a letter to the defendant, a letter dated August 25 2014, seeking to be supplied with documentary evidence of the approval, but none were supplied, forcing him to seek redress,” said Gikandi. But in response, Ahmed Jan Mohamed argued that Khalid Hussein Rehman ownership of the apartment did not relate to ownership of the plot.
Ahmed Jan asserted that he not only has a proprietary interest in the two apartments retained for himself but also in the whole plot as there is no management company and insisted he was the sole owner of the land.
The developer pointed out that it was only Khalid, apart from others, who had raised the issue of the construction of the additional apartment.
Jan insisted that, after all, the plaintiff does not have a unit on block B where he wanted to put up the additional apartment.
The developer insisted he has an agreement with the complainant for apartments in blocks A and C, but not on block B where he has no unit.
In his judgment, the judge ordered a permanent injunction against the developer on grounds that there is no evidence that he consulted the buyer of the units in his buildings as was required by the law.
“I am further persuaded to issue an order of mandatory injunction, directing the defendant to remove at his cost the additional development that he had commenced and have the property restored to the state it was before the impugned construction,” said Justice Munyao.