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Nairobi City residents fight to retain master plan of their estate

COUNTIES
By KNA | November 2nd 2016
Entrance to Thomson estate in Nairobi. A private developer has sued residents for denying him rights to put up apartments in the gated compound. (PHOTO: COURTESY)

A private developer has moved to court seeking clearance to build storeyed apartments in a gated residential estate.

In a petition filed in the High Court, Abdiladif Ismail has challenged a decision by residents of Thomson estate to bar him from building apartments on his private land.

The estate has 69 stand-alone house units in a gated compound and has since the colonial era maintained its master plan.

Residents ensure no apartments are built in the estate by informing prospective buyers of the agreed decision.

“All buyers of property within this neighbourhood are notified of the community policy to maintain a regulated gated community free of commercial and high-rise development. The committee is under strict instructions to enforce this policy,” reads a notice strategically placed at the highly guarded gate.

To ensure there is security, the residents have embraced the Nyumba Kumi initiative under their Kunde Road Residents’ Welfare Association.

Mr Ismail, through the law firm Abib and Associates Advocates, has invoked the Land Act 2012 and Land Registration Act 2012 along with the Physical Planning Act Cap 286 in the matter.

In the suit, Ismail says the residents had threatened to interfere with his construction work, thus infringing on his right to enjoy his property.

court records

He names Koome Mwambia, Maribel Larson and Jeremy Ngunze on their own behalf and on behalf of the Kunde Road Residents’ Welfare Association as the respondents.

The City County Government and the National Environment Management Authority are also enjoined in the case as first and second interested parties respectively.

He argues the respondents, as private citizens, were blatantly violating his constitutional rights against the spirit of the Constitution.

“The respondents’ threat is actuated by malice, ill motive and bad faith as the petitioner has refused to ascribe to the aspirations of the residents’ association that represents some of the property owners in this estate where the petitioner’s property is situated,” the application reads in part.

Conservatory orer

In addition, Ismail states that upon acquisition of the land, he knew of relevant zoning rules within the estate.

“It was on these grounds that I subsequently applied for change of user approval from the County Government Physical Planning Department, which was consequently granted,” he adds.

Judge Edward Muriithi ordered that there be a conservatory order “subject to payment of gate fees levied by the respondents for maintenance of security gate and service.”

The ruling empowered the petitioner to continue with the construction but the residents could not take it lying down. They filed an appeal, and sought to stop the construction of the planned town houses. Ismail moved to court to counter the same.

The residents argued the constructor was out to alter the environmental character of the gated estate contrary to the policy and wishes of the property owners therein.

Mr Mwambia averred in his appeal that a baseline survey of key environmental parameters such as noise pollution, air quality, electric power consumption, and storm water drainage was not appropriated at the site prior to the construction.

“No evaluation of anticipated environmental impacts and proposed mitigation associated with the development of such magnitude was carried out,” he submitted. 

The approval of the change of user, he argued, was fraudulently obtained.

But since the petitioner had already moved to court, the residents were obliged to challenge the conservatory order, an appeal that Justice Muriithi granted on October 3, 2016.

He argued the petitioner was guilty of disobeying the stop order issued by the tribunal and that his action was bound to interfere with the appeal at the tribunal.

Justice Muriithi ruled the order be stayed pending the hearing and determination of the appeal before the tribunal or further orders from the court.

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