The Environmental and Land Court (the High Court) has issued an injunction stopping the development of a 13-level mixed-use development including over 200 duplex apartments on Peponi Road in Westlands, Nairobi (the Proposed Project). In its ruling stopping further development of the Proposed Project pending determination of the matter, the High Court has clearly shown that when real estate developers are accused of violating the public’s constitutional rights, the court is likely to intervene, prioritising the public’s interests over the developers’ significant investments. The High Court also found merit in considering whether there was proper public participation and engagement with relevant stakeholders, including the residents of the affected area prior to the commencement of a development.
Brief facts of the case
A local residents’ association filed a constitutional petition claiming that the developer of the Proposed Project did not adhere to the designated zoning of the area, which they assert is a low-density, single-dwelling residential zone. The developer had applied to the County Government of Nairobi for a change of use of the land on which the Proposed Project is being developed, from residential (single dwelling) to residential (multi-dwelling). Further, the residents’ association asserts that construction began without addressing the potential adverse impact on key public infrastructure, such as increased traffic and the capacity of existing sewerage facilities, particularly given the development’s proximity to riparian land and rivers. Finally, the residents’ association claims that the developer failed to carry out proper public participation in relation to the application for the change of use for the land as required by law. Based on these key concerns, the residents’ association sought an injunction to stop the ongoing construction of the Proposed Project until the constitutional petition is heard and determined.
Court’s findings
The High Court acknowledged the residents’ associations’ concerns as significant, citing constitutional rights, and found a high likelihood of irreparable harm being suffered by both the members of the residents’ association and the environment, in the absence of a stop order.
It will be interesting to see the final determination of the court once it has had the opportunity to consider the merits of the case.
Recent trends in rights advocacy by residents’ associations
Recently, residents’ associations have become more proactive in advocating for the enforcement of zoning and planning laws, as well as protecting their constitutional right to a clean and healthy environment. The Karen Langata Residents Association has been actively supporting its members in safeguarding these rights for decades. Last year, the Rhapta Road Residents Association took legal action to protect similar rights, and just last week, the Parklands Residents Association filed a case in the High Court, challenging the legality of several ongoing development projects in the Parklands area of Nairobi, for violating zoning laws and their constitutional right to a clean environment.
Conclusion
These recent court actions serve as a stark reminder to real estate developers that adhering to the processes and substance of laws relating to zoning, physical planning, and the environment, including, undertaking proper and meaningful public participation before implementing their projects, is not to be taken lightly. It is a critical part of ensuring we have proper and orderly development of real estate in the country and that the fundamental right to a clean and healthy environment is protected.
The takeaway for real estate developers
Members of the public are getting more organised and have a keen focus on ensuring the sanctity of their neighbourhoods is maintained. It is not going to be ‘business as usual’. The level of scrutiny on real estate developers, by members of the public, in the implementation of their projects has gone a notch higher. They must now cautiously approach matters concerning zoning, and environmental matters, and ensure they plan for sufficient infrastructure to support their proposed projects. They must be careful, measured and intentional in ensuring compliance with the law. Doing so will mitigate the risk of unnecessary disputes that could delay their proposed projects and significantly increase their costs and expenses.
