Developers hit by decision on public participation

A court has delivered a major blow to developers by ruling that communities have a key role in deciding whether new houses or business centers can be built.

In a landmark decision that promises to shake up the construction industry, the Environment and Land Court ruled that developers must clearly state the type of structure they plan to build for public review.

For instance, if a developer wants to change user and build a 20-storey building, they must indicate this and seek approval from the local community.

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Previously, developers only provided vague information about the project and change of user.

Justice Benard Eboso said that notices must include the author’s identity and details on how to submit objections. “All the above are key elements in public participation. Without them, the purported notice cannot be said to have satisfied the requirements of the law."

In the case, Markerryl Company, a construction firm picked to build Leerand School in Thika, received a change of user and construction approval from the Kiambu County Executive Committee Member.

The Kisiwa West Estate Residents Welfare Group appealed this decision but a Liaison Committee determined that the company had fulfilled all requirements for public participation and that the approvals were in accordance with the law.

Justice Eboso found that the CECM had already denied the company approval before she had a change of heart after the committee's decision gave her the greenlight.

The judge set aside the approval saying that it lacked public participation. He found that the CECM went 'above board' to perform duties that should be left to the committee.

According to him, failure to involve the community in the decision-making process was fatal enough to render the CECM’s decision unconstitutional.