BY SAM ALFAN.
Court of Appeal has suspended further demolition of multi-million-shilling Grand Manor Hotel near the US Embassy and Universe Nations office in Gigiri owned by businessman Praful Kumar.
Appellate Judges Mohamed Warsame, Daniel Musinga and Prof Otieno Odek directed the order of stay to operate pending hearing and determination of the appeal filed by the Kumar.
“In the mean time status quo the property L.R. NAIROBI/BLOCK 91/239 to be maintain pending hearing of the appeal” ruled the Judges.
This is after the Grand Manor hotel filed an appeal seeking orders to stop further demolition of the hotel.
Grand manor hotel through senior counsel Paul Muite and Kithinji Marete, told the court that 80 percent of the building is still standing.
“Following the issuance of a Conservatory Order by the Hon. Justice Eboso on December 13,2018, the applicant has entered upon its property and found that the same is substantially damaged and the upper part thereof is not yet affected and may be salvaged subject to expert assessment and advice,”. Said Muite.
The three judge bench heard that at around midnight on the night of December, 12 2018, Nairobi County government employees and agents descended onto the hotel and commenced the demolition using heavy equipment and under police guard.
Lawyer Muite argued further demolition of the subject property shall render the intended appeal from the decision of Justice Eboso completely nugatory.
“The intended appeal raises serious constitutional and legal issues and has reasonable chances of success,” said Muite.
Lawyer further added that Appellate Court has the Jurisdiction and mandate to intervene and grant the Orders sought in Order to preserve the subject property pending the hearing and determination of the Appeal.
Whitehorse Limited the proprietors of Gigiri based hotel argued that the Judge erred in and misapplied the Law in failing to appreciate that having approved the development on the subject property, the Respondent was estopped from issuing the subject Enforcement Notice or raising the issues raised therein.
“The Judge misconstrued the Law and failed to appreciate that the Respondents actions in issuing the subject Enforcement Notice were amenable to prerogative Orders sought before him on the Grounds raised before him,” lawyer said.
They also accused the judge for misapprehended the law in failing to hold that the Appeal Mechanism under the Physical Planning Act did not apply to the subject Enforcement Notice and further that in any event the threat to the Appellant’s Constitutional Right to Property and the quiet enjoyment thereof constituted exceptional circumstances to obviate the application of any Appeal mechanism provided in the Physical Planning Act
Nairobi County government lawyer Harrison Kinyajui opposed orders suspending further demolition saying the hotel has failed to use other avenue put in place
Kinyanjui told the judges that the hotel grand manor pause security threat to U.S embassy, United Kingdom,United Nations ,Embassy of Kingdom of Morocco among other diplomatic office who has raised security concerns.
The court directed the matter to be heard on priority basis.
According to documents seen by NairobiTimez, the United State of America , the High Commission of Botswana ,United Nations office in Nairobi and the Embassy of the Kingdom of Morocco filed a diplomatic complaint to the ministry of foreign affairs opposing the construction of the hotel through a collective note No. 1639 dated July 13,2017 , concerning the construction of Grand Manor hotel on plot 91/239 United Nations Avenue , Gigiri.
“As previously noted , the undersigned missions have concerns about the contact of the project on our operations , in particular its security implications. We also have concerns about the approval process applied during the project , since the time were consulted regarding the project’s potential impact-security environment or otherwise on the neighborhood,” state the letter.
The letter urged foreign affairs ministry to address concerns raised the embassies security and process concerns construction of the project.
Ministry of Foreign Affairs wrote a letter through Ambassador Macharia Kamau to Nairobi County Secretary Peter Kariuki informing him that the said foreign mission wrote a reminder a reminder that their concerns regarding security and environmental implications , as well as lack of stakeholders consultation prior to approval of the development are yet to be addressed .
“Conservatory is hereby issued to remain in force for seven days during which period the applicant will file an appeal and seek appropriate interim relief in the appellate court,”. Ordered Eboso.
The court further suspended the enforcement notice.
“The material enforcement notice is accordingly suspended for seven days,” court ordered.
Whitehorse Investment Limited through lawyer Kithinji Marete, told the court Nairobi County Government descended on the suit property last night with bulldozers and embarked on demolition of the property.
“The applicant urges the court to conserve the property pending either of the two options. Its position is that only a portion of the property has been demolished,”. Marete.
