Residents of the affluent Kizingo estate in Mombasa County have to contend with a high-rise building after the court gave a private developer the green light to erect a 16-storey apartment.
Khansa Developers Ltd will now proceed with the project that had stopped after the residents raised objections to the apartments, on grounds that their privacy will be compromised if the building was erected.
Environment and Lands Court Judge Lucas Naikuni allowed the firm to continue with the project, but on condition that the apartment be reduced from an 18-storey building to 16 floors.
“A declaration is hereby issued that the proposed development of 18-floors building-Plot Number Mombasa/ Block/XXVI595 be reduced to 16 floors and be in compliance with the law,” ruled the judge.
The judge also directed the developer to re-submit the application for approval by the county and the National Environment Management Authority (Nema).
He also directed that the public and residents staying in Kizingo area be fully involved in the project through public participation and that the potential negative impacts of the intended development and safety measures be clearly placed and set out.
“Khansa Developers Ltd to ensure that the area where the development project is being undertaken is a development control area. It should not be a threat, violation or denial of the resident’s right to a clean and healthy environment,” ruled Justice Naikuni.
The court also directed the developer to ensure that the petitioners' houses' natural light and privacy rights are not jeopardised.
In allowing the developer to proceed with the project, the judge reviewed his previous orders that had halted the project.
In a ruling issued last year, Justice Naikuni halted the construction of the 18-floor building after agreeing with Kizingo residents that the tall structure would disrupt their privacy in bedrooms and swimming pools.
Proprietors in the Kizingo area, led by Mohamed Abdalla, Salim Said, Abdulaziz Abbas, Bharat Devidas and Ketan Doshi, filed the case lamenting that their right to privacy would be greatly interfered with if the building is erected.
They argued that the development was being undertaken in violation of the law and with disregard to the well-being of the area residents.
They claim the developer sought to build 53 flats in an area without sufficient social services like sewerage system, water supply, road access and proper drainage.
They sued Khansa Development Limited, Ramesh Chandra Haria, Mombasa County Government and Nema.
The petitioners accused the county and Nema of colluding with the developer to issue development approvals without consulting the public. They argued that the area where the project was located was a development control area, thus endangering their right to a clean and healthy environment.
However, the developer stated it had properly applied for and received approval to change the land use from the county government after following duet legal procedures.
The court heard their case and halted the project, deeming the proposed 18-story building development irregular, illegal and non-compliant with the Constitution.
However, the developer was aggrieved by this decision and returned to court to seek a review of the ruling that halted the project.
The developer claimed to have found new material that was not available to the court when it issued the initial verdict.
Part of the new material was that it had obtained validations of the Mombasa County Government approvals and the Nema license in adherence to the court judgment delivered in February last year.
It also said it had discovered that the court relied on its raw report from the site visit and failed to take notice of deletions and skeletal submissions the developer had pointed out and highlighted to the court.
“Having found that the petitioners failed to challenge the change of user, though fully aware from the advertisement, the court erroneously used these findings against us," the firm said.
The judge said he had considered issues raised by the private developer and noted that the firm had demonstrated sufficient reason to warrant a review of the judgment in question.
“After conducting such an intensive and elaborate analysis to the framed issues, the court is satisfied that the private firm in its Notice of Motion has … established its claim for review of the judgment of this court,” said Justice Naikuni.
The judge set aside his earlier judgment and directed the private developer to fulfill the pre – conditions before embarking on the project.
