Case Law
This section discusses judicial decisions that have been adjudicated and which affect construction and maintenance value chain.
路 In this case, the Constitutional division of the High Court in Nairobi allowed a petition against a property developer (of Phenom Park Estate in Lang鈥檃ta) and made a declaration that the developer had violated the constitutional rights of children of the house purchasers as well as their right to human dignity and proper sanitation as well as the right to clean and safe water in adequate quantities. As regards the violation of children鈥檚 rights, rights including the right to dignity had been violated for lack of playgrounds in the estate thereby being forced to complete with motor vehicles in the parking area, which is not in the best interests of the child and therefore a violation of article 53(2) of the Constitution. A site report by Deputy Registrar of the Court had confirmed that there were no play areas in the estate with the available ones having either clothesline, manhole, or electricity torrents hence not fit as playground for children. With respect to provision of clean and safe water in adequate quantities, the court held (para 46) that the petitioners had proved that the water in the borehole was unsafe for human consumption and that the water supplied by Nairobi Sewerage Company was inadequate.
路 Notably, the court in fact stated that the petitioners had legal standing to bring a representative suit and even secure an injunction stopping construction with regards to Phase 4 of the housing development that was yet to be complete (even though they were not purchasers of the said houses), holding that article 258 of the Constitution allows one to bring a representative suit even on behalf of prospective purchasers. This is likely to open room for persons without an interest in a housing development to act as proxies in litigation for those with an interest but who fear any reprisals.
路 The court consequently directed the developer to install water filtration systems in the housing estate/development and provide a play area for children in the estate separate from the car parking area, within a period of 90 days.
路 The court further remarked (at paragraph 48) that the County Government of Nairobi being legally obligated with the proper execution and implementation of approved physical development plans including checking for any breach of approved conditions, should visit the estate and find out whether the construction plans are as per the approved plans, and if not so, revoke the approvals.
路 This court decision appears to have imposed an obligation to provide playgrounds for children when they build housing units, which will obviously require additional land or building of fewer than optimal housing units to create room for playgrounds. This will certainly result in escalation of housing costs to consider this development. In addition, property developers have now to be wary that the water they provide, among other essential services, are fit and safe for consumption. The court appears to have cast private property developers as duty bearers, much like the state.
路 It however seems to be that a key reason for the holding of requiring the developer to provide the playgrounds may have been the fact that the developer had included designated playing areas in its marketing brochures for the off-plan development. This means that developers must be wary of what they provide for in their marketing brochures (even when not included in the executed sale agreement) as courts are likely to require them to honour their part of their promise.
路 In this case, the court stated that before a property developer can change architectural plans which it has already presented, it must consult or engage the purchasers in public participation.
路 The court refused to quash a cancellation of an approval earlier issued to a developer after finding that the county government had the requisite legal authority to cancel the approvals of the plans for failure to undertake public participation and apply for a change of user. In this case, the court remarked that development control is a continuous process that begins in the pre-construction period and continues into the post-construction period.
路 In Charles Murunga & 5 others v James Chege & another [2021] eKLR, the court issued a permanent injunction against an individual from constructing houses or erecting structures within Ngei Estate in Lang鈥檃ta which did not accord with the original planning of the houses and estate which is for single dwelling houses. In this case, the individual was constructing multi-dwelling houses without obtaining a change of user. The court was of the view that such structures were out of the character of the estate and ordered demolition of the already erected structures at the cost of the defendant.
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