The Court of Appeal has temporarily ordered a developer to halt construction of a 16-storey building in Lavington, a project opposed by current residents citing violation of their right to a clean and healthy environment.
The appellate court ordered Metricon Home Nairobi Co. Ltd to cease construction of the building for at least 60 days in order to allow the Mbaazi Residents Association to argue their case.
The residents lost their initial case after the Environment and Land Court ruled that they had failed to prove their claims.
“As regards whether the appeal will be rendered nugatory, we have no doubt in our minds that it will. If the appeal succeeds after the project is completed, the project will stand as nothing but a monument to environmental degradation. It will not be a consolation or of any benefit to Metricon to be ordered to demolish the completed structures,” Justices Wanjiru Karanja, Kathurima M’Inoti and Lydia Achode ruled.
The judges said while the claims by the residents were not idle and deserve full ventilation in court, the case should be heard faster so that the developer can proceed with the project in case the appeal is unsuccessful.
The developer argued that halting the project would result in contractual breaches, penalties and interests.
Photo credit: Shutterstock
The developer had opposed the application arguing that it had already entered into binding contracts with purchasers, sub-contractors, service providers, suppliers of materials and third parties.
It submitted that halting the project would result in contractual breaches, penalties and interests, yet the residents had not demonstrated their ability to compensate the developer should the appeal fail with conservatory orders in force.
Metricon director Mr Yu Tang had also submitted that the project had created jobs and was going to provide housing for members of the public and it was, therefore, not in public interest to stop the construction.
The residents, through Millennium Gardens Management Ltd, moved to court last year to stop Metricon from proceeding with the construction.
Millennium Gardens said it manages 28 residential homes, which share a common boundary with Metricon.
512 housing units on one acre
The residents claimed that the development was irregular and in violation of the area's zoning policy and restrictions.
They also submitted that due to deep excavation, the structural integrity of existing buildings was in danger, as well as the existing drainage system that was bound to be overstretched.
According to the residents, there was no proper public participation before the project started.
However, in opposing the case, Metricon submitted that it invited members of the public through a press notice in March 2022 to raise any concerns or objections to the project. Further, the developer said he undertook an Environmental Impact Assessment (EIA) study which provided mitigation measures to the concerns raised.
On the allegation of violation of zoning regulations, the developer said it was unsubstantiated because the existing zoning policy for the area was under review.
Nairobi County supports developer
City Hall, the headquarters of the Nairobi City County Government.
Photo credit: File | Nation Media Group
The Nairobi County Government also opposed the case arguing that the project had 416 units and that prior to commencement, Metricon obtained the requisite change of user and development permission, met the conditions under which the approvals were issued, including obtaining EIA from National Environment Management Authority (Nema) and relevant approvals from the Nairobi Water & Sewerage Company and the Water Resources Authority.
As regards zoning, the County Government confirmed that the zoning policy was under review and that there were already other projects in the area as high as 13 stories, meaning the project is not different from its surroundings.
While dismissing the case last year, Justice Oscar Angote noted that the zoning policy was developed in 2004 and that it was under review.
But the residents faulted the judge for ‘glossing over the significant health and environmental hazards’ they had raised.
