Why court sided with Lavington residents to stop 16-storey apartment project

The Court of Appeal has barred a contractor from building an apartment of 512 units in an environment conservation battle filed by Lavington residents.

Court of Appeal Judges Wanjiru Karanja, Kathurima M’inoti, and Lydia Achode unanimously agreed that the Mbaazi Residents Association and Millennium Gardens residents’ concern that Nairobi County, National Environment Management Authority (NEMA) had illegally allowed the construction of the 16 floors apartments beyond the ="https://www.standardmedia.co.ke/business/real-estate/article/2001508278/value-of-construction-projects-hit-sh310b-despite-dip-in-approvals">zoning regulations< was genuine.

They observed that if ="https://www.standardmedia.co.ke/sports/nairobi/article/2001484589/court-extends-orders-barring-firm-from-constructing-16-floor-apartment-in-lavington">Metricon Home Nairobi< is allowed to proceed, the buildings will be nothing but a monument to environmental degradation if the appeal succeeds.

At the same time, the bench headed by Justice Wanjiru said it would not be of benefit if the court would also order Metricon to demolish the contested structures. According to them, the best solution is to stop the construction until the case is settled.

“In our view, those are not idle complaints. They deserve full ventilation in this Court, granted the centrality of environmental protection and the reality of elevation in our constitutional order of the right to a clean and healthy environment into a constitutional norm. We are satisfied that the appeal is arguable,” the court ruled.

The ="https://www.standardmedia.co.ke/counties/article/2000148768/what-next-for-lavington">Lavington residents< are seeking to stop developers from putting up apartments beyond four floors. The Judges directed the case to be fast-tracked within 60 days that the orders would be in place.

According to Millennium, Mbaazi, the project is bound to affect the privacy and lives of the neighbours owing to the high number of units set to be built.

The residents complained that the air quality in the area would be affected owing to the number of vehicles owned by the tenants of the property.

Initially, the National Environment Management Authority (Nema) had approved 336 units but Nairobi County increased the same with two letters from the county.

The county however ordered ="https://www.standardmedia.co.ke/business/article/2001514764/mandatory-soil-test-looms-for-developers-before-construction">developers to stop construction< and conduct public participation. In court, the resident argued that the developer allegedly ignored the county’s directive.

“The intended development will infringe the petitioners’ members right to a clean and healthy environment having regard to the developer’s intent to cram up to 512 housing units on one acre of plot in disregard of the zoning regulations, scarce amenities, and resources,” the residents complained.

The residents also lamented that putting such huge apartments would cut-off natural sunlight, affect a circulation; emit exhaust fumes from the anticipated numerous vehicles and interrupt aerial communication
equipment, thus violating their constitutional right to a clean and healthy environment.

To avoid any conflicts, the residents through their leadership have erected billboards warning developers from going above four floors.

“All developers are notified of zoning provisions limiting developments to four floors. Developers who violate this rule will be prosecuted,” the billboards read in part.

The notices indicate that the one serene suburb neighbourhood is fighting to keep its state and environment from overzealous developers chasing after the skies.

Nairobi County classified the areas, including Lavington, Kileleshwa, and Runda, under Zone Four, which restricted developers from building beyond four floors.

The situation is however changing with apartments going up beyond the required height or floors - thus infringing on the county regulations and privacy that the affluent had been enjoying.

The unregulated development is now causing jitters that the once leafy estate is losing its allure. 

The Judges directed the case to be fast tracked within 60 days that the orders would be in place.