The Environment and Land Court in Mombasa has issued an order stopping ongoing demolition at Buxton estate, where the Mombasa County in partnership with a private developer, intends to put up an affordable Sh6 billion housing project.
Justice Sila Munyao ordered the status quo to be maintained in the estate and that if there are any demolitions going on, they ought to be stopped pending his ruling on March 23.
This was after an application by some residents, who wanted an order issued restraining Mombasa County government from demolishing the houses or dealing with the properties, pending hearing of their appeal, against the court’s decision dismissing their petition challenging the project.
On Saturday, Mombasa County officers partially demolished the buildings (removed windows and doors) of the housing units in the estate forcing residents to move out, before the entire land where the houses stand, was fenced off using iron sheets.
Through lawyer Gikandi Ngibuni, the residents told the court that since the quest for ownership of the 14 acres of land where the estate stands has not been fully determined, the court ought to order that status quo be maintained pending appeal.
“I submit that under Article 47, the court has a duty to maintain the subject matter of appeal. Even though the petition was dismissed, tables turn on appeal,” argued Mr Gikandi while urging the court to grant an injunction.
Mombasa County government, through lawyer Walter Amoko told the court that there has been no eviction of the residents and that people moved out of the estate voluntarily.
“What is it you are being asked to stop when there is voluntary exit and payments made?,” asked Mr Amoko.
He argued that some of residents signed a termination of tenancy agreement, were paid Sh230,000 as ex gratia payment and also reserved housing units, in the proposed scheme to be constructed.
Two weeks ago, the High court dismissed a petition by the residents challenging the implementation of the project at the estate.
It ruled that issues raised by the residents challenging implementation of the project had been determined by another court four years ago in a petition which involved all ten county estates.
The court ruled that Buxton estate was part of the ten estates in the previous petition where the court made a determination on various issues among them the right to housing.
“You cannot remove one estate, in the previous petition. Buxton was one of the estates….…the court will not have jurisdiction to re-open the issues,” said Justice Munyao.
Justice Munyao further ruled that he had not found any violation of Buxton estate residents’ rights on the issue of their removal from the houses.
The judge further noted that the Buxton tenants had been given 90 days to vacate the houses by the county government instead of one month and that they would receive ex-gratia payment, which was not even in the tenancy agreement.
The Buxton residents wanted a declaration that they have a right to continue occupying the flats in the estate and that the county government and Buxton Point Apartment Ltd which is set to undertake the project, do not have the power to interfere with their quiet and peaceful occupation.
In their petition, the residents also wanted a declaration that Buxton Point Apartments Ltd does not have the capacity to deal with any portion of the land where the estate stands.
They argued that current tenants in the housing units at the estate will lose their houses which will be demolished and those to be built will be sold to any willing buyer at commercial rates.
“The petitioners state that many of them will not have the opportunity of purchasing any such houses as they are people of low income,” part of the petition stated.
The residents argued that Buxton estate stands on 14 acres’ public land thus the powers to manage and alienate public land is vested on the National Land Commission (NLC).
They argued that the county government acted unlawfully, by purporting to alienate public land, hence it amounts to violation of the constitution.
“Any project that is to be carried out on public land must be subject to the approval of NLC,” the petition stated.
They further claimed that the county government of Mombasa unlawfully used the Public Private Partnership Act to confer a benefit over the use of the public land on Buxton Point Apartments Ltd rendering the decision illegal.
The residents, further say that demolition of the existing flats in the estate, and the intended construction of 1,500 units, will create disturbances that will have a huge social, political and economic implications.
According to the residents, they did not participate in the deliberations that led to the decision that has such ‘heavy ramification’.
They also argued that the refusal by the Mombasa county government to avail to them information regarding the project, raises the question of integrity, accountability, transparency, sustainable development and viability in the implementation of the project.
“The intended eviction will create serious and adverse impacts on the petitioners which include relocation plan, compensation for eviction, comeback plan, tenant purchase plan and payment rates for the new apartment,” the residents further argued.
The residents, also argued that the county government had failed to issue proper guidelines on the comeback plan for the residents of Buxton in the event the project is completed successfully.
On its part, the County government had argued that the housing project to be undertaken in partnership with Buxton Point Apartment Ltd was transparent.
The devolved unit told the court that there was nothing being hidden in the project and that the current over 500 housing units, will be replaced by 1,850 new units.
It also told the court that the project will not render any resident of the estate homeless, but address the issue of housing (deficit) in Mombasa.
The court further heard that Buxton Point Apartment Ltd will offer the houses at affordable rates and that current estate residents will be given priority during the sale (of the houses), once complete.
Mombasa County government dismissed allegations that the project was intended to benefit Buxton Point Apartments Ltd.
