By The Weekly Vision
Businessman John Harun Mwau has exposed the rot at the Nairobi City County’s Planning department where officers allegedly approved the construction of a block of residential flats after pocketing huge sums of money in the form of bribery. In a case filed at the Environment and Land Court at Nairobi (Elc Petition No. E053 of 2022) Mr Mwau sought orders stopping any development on plot number L.R. No. 209/1458/2 before Judge A.O Angote, the ruling was delivered virtually in Nairobi on 8th June 2023.
The ruling reads “Pending the hearing and determination of this Petition, an interim order of injunction is hereby issued restraining and/or stopping all development activities pursuant to the complaint of application for development permission and change of user and/or any other permission or approval issued in respect of L.R. No. 209/1458/2”. The judge further gave compelling orders to the County Executive Committee Member in charge Of Planning. The orders read “The 1st and 2nd Respondents are hereby compelled to provide all copies of applications and supporting documents for the change of user and building plan approvals, all documents and comments received from the relevant authorities in respect of the application for change of user and building approvals, all minutes concerning the approval of the change of user and building plan approvals issued in respect of L.R. No. 209/1458/2 within 30 days”.
In the application, Mr Mwau, the director of Tom Brown Ltd which is the registered owner of L.R. No. 209/1458/3 (now NAIROBI/ BLOCK27/231), which is adjacent to plot L.R. No. 209/1458/2 (the suite property) share a common boundary. Mr Mwau sued the County Executive Committee Member in charge of Planning and Nova Realty Group Ltd. Those mentioned as interested parties in the suit were the Ministry Of Defense and The Chinese Embassy, in Kenya. Mwau in his papers claimed that rogue Nairobi City County Planning officers fraudulently approved an application by Nova Reality Group Ltd to construct a 12-storey 42 apartments development on L.R. No. 209/1458/2, a plot less than half an acre in size, within a gated community and next to strategic installations such as the Chinese Embassy and the Kenya Defense Forces Headquarters, threatening the constitutional rights of the Petitioners and other residents in the gated community.
In his application, Mr Mwau averred that the whole neighbourhood consists of single-dwelling marionettes and houses constructed not beyond one floor and that the city county imposed a height restriction on developments in the area due to security restrictions and the nature of the area being a controlled development. He further said that the development will adversely affect the intrinsic environmental value and character of the area as the trees that existed on the plot were cut down to allow for construction. Further, it was deponed, before the change of user from a low density single residential unit to high-density multi-dwelling units, proper planning provision of increased utilities in the area, including increased sewerage capacity, water supply, electricity and waste management should be put in place and that since this has not taken place, any high-density multi-story building is likely to strain the existing utilities to the detriment and damage of the Petitioners and other area residents
He further claimed that the said Planning officers upon receiving hefty bribes approved the change of user and development approvals, a process which was being undertaken in an opaque and clandestine manner, contrary to the law. It has also been discovered that Nairobi City County Planning officers had blatantly refused to provide information concerning the purported change of user and building approvals, including the minutes of the Committee approving the development applications and the purported zoning regulations for the area.
He noted that it is a statutory requirement that for change of user and development applications, especially within a controlled development, the application for approval be served on every property owner or occupier of adjacent property; that the change of user herein has adverse effects on the neighbouring properties as it would infringe on the privacy of neighbours and that the said development will be a security threat to strategic installations, cause traffic congestion and noise pollution and devalue the adjacent properties.
In his application, Mr Mwau averred that the whole neighbourhood consists of single-dwelling marionettes and houses constructed not beyond one floor and that the city county imposed a height restriction on developments in the area due to security restrictions and the nature of the area being a controlled development. He further said that the development will adversely affect the intrinsic environmental value and character of the area as the trees that existed on the plot were cut down to allow for construction. Further, it was deponed, before the change of user from a low density single residential unit to high-density multi-dwelling units, proper planning provision of increased utilities in the area, including increased sewerage capacity, water supply, electricity and waste management should be put in place and that since this has not taken place, any high-density multi-story building is likely to strain the existing utilities to the detriment and damage of the Petitioners and other area residents.
However, the Deputy Director, Planning, Compliance and Enforcement Department Nairobi City County deponed that Vandex East Africa Limited made an application for development permission and change of user from a single dwelling unit to multi-dwelling units (apartments) of the suit property and submitted planning briefs and building plans by a registered architect and registered planner to the Nairobi City County and made the requisite payments. According to Mr Mwau, he objected with the County Executive Member for Land and Urban Planning, the County Secretary and the Director of Planning vide a letter dated 14th January 2022 and aggrieved by the lack of response to his letters, he reported the matter to the Director, Directorate of Criminal Investigations, and Nairobi City County.
According to Mwau, the alleged change of user ought to have been from professional offices to multi-dwelling apartments as Vandex East Africa Ltd applied to change the user from single dwelling residential house to professional offices on 26th September which was issued on 1st March 2007 and that the planning brief is not accurate as it indicates that the owners of the suit property are seeking a change of use from a single dwelling to a multi-dwelling which is not the case.
He further claimed that it is not true that several public participation measures were undertaken with the public and adjacent neighbours as the adjoining neighbours were not informed of the alleged change of user and that there has never been a site notice on the said gate.
The judge noted that considering that the Kenya Defence Forces headquarters is only 200 meters away, and because of the concerns raised by the Ministry of Defence, this court needs to be told if indeed that concern was addressed by the 2nd Respondent before it approved the alleged change of user and development of the suit property. Indeed, the Nairobi Metropolitan Services noted in its letter dated 17th May 2022 that the application was missing clearance from the Ministry of Defence and a letter of no objection from the neighbours under Section 58 (8) of the Physical and Land Use Planning Act. According to the Director General, the application for development permission was deferred pending compliance.
The judge further noted that Mwau there is also evidence that the Petitioners herein made objections to the proposed development by the letter dated 14th January 2022, and followed up on the same with several reminders on 14th January 2022, 7th April 2022 and 11th October 2022. The 1st and 2nd Respondents ought to rebut this evidence by showing the decision that was made on the said objections and whether the same was ever communicated to the Petitioners.
