A judge has stopped the construction of an 18-floor building in Mombasa after neighbours complained that it would interfere with their privacy in bedrooms and swimming pools.
In the landmark decision that handed the Kizingo residents their right to privacy, Justice Lucas Naikuni of the Environment and Lands Court said the emergence of high-rise apartments in Nairobi and Mombasa would soon turn to "vertical slums" if left unchecked.
"It is becoming evident that uncontrolled development of high-rise apartments in various places within the city of Nairobi such as Kilimani, Kileleshwa and Lavington areas are now putting a strain on the available amenities and may soon turn the areas into vertical slums if left unchecked," stated the judge in his ruling on the case filed on May 5, 2022.
The case was filed by proprietors in the Kizingo area who were worried that the 18-floor building with 53 apartments by Khanza Developers Ltd would interfere with their right to privacy.
Led by Mohamed Abdalla, Salim Said, Abdulaziz Abbas, Bharat Devidas and Ketan Doshi, the petitioners argued in court that the development was undertaken in total disregard of the law.
"The petitioners averred that the respondent's development had been undertaken in total disregard to the environmental considerations and the same interference with the natural status of the area," states the judgment.
They said that the developer wanted to put up 53 apartments in an area with no proper social amenities like a sewerage system, water supply, access to roads and proper drainage.
"The respondent had not provided a proper mechanism to caution the petitioners from noise and air pollution as a result of mega-development. The heavy machines used in the development were likely to affect the petitioners' houses in the long term," it stated. The respondents are Khansa Development Limited, Ramesh Chandra Haria, Mombasa County Government and the National Environmental Management Authority (Nema).
The petitioners accused the county and Nema of colluding with the developer to issue development approvals without seeking the views of the public.
In their defense, the developer said he dully applied and was granted the change of use of his land by the county after conducting public participation.
The developer said that to observe all the environmental issues of pollution and safety, they put in place dust nets, regularly sprinkled water, and controlled motor vehicle fleets.
But the court established that the developer and the county government did not conduct public participation as demanded by the Constitution.
"Of concern to the court is the failure to conduct public participation at the beginning of the process," said Justice Naikuni in his judgment delivered on February 22, this year.
He said the development in an area must be judged by its impact on the people, not only in changes in their income but more generally in terms of their choices, capabilities and freedoms.
Mombasa County claimed in the submission that the petitioners were relying on an old and outdated construction policy that stipulated that the area was only for lower horizontal houses.
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