BY SAM ALFAN.
A developer has been stopped construction on a parcel of land on Peponi Rise Road in Nairobi, pending the determination of an appeal challenging the developments.
Court of Appeal Judges Hannah Okwengu, Jamila Mohamed and Msagha Mbogholi stopped Airview Properties ltd from proceeding with construction on Land Reference 17/432 along Peponi Rise Road.
The appeal has been lodged by One Hundred and Two Peponi road LLP.
“That is the position in this matter. In addition, it has not been alleged that the applicants are incapable of meeting any damages that may be found payable in the event the appeal does not succeed. It is for these reasons that we were persuaded that the application should succeed in terms and that costs should abide the outcome of the appeal,” ruled appellate judges.
The judges said they were mindful of the Airview Properties ltd concern that there are contracts with 3rd parties which are likely to trigger default clauses leading to liability in damages.
One Hundred and Two Peponi road LLP through Senior Counsel Paul Muite and Abbas Ismael filed an Appeal before Court appeal seeking to stop the developer from proceeding with the construction or conducting construction activities on the said land.
The company together with Peponi Road Resident Association argue that by the time they moved to the court for permission to challenge the development, the alternative remedy was no longer available as the statutory time limit had expired.
They said the delay was caused by the National Environment Management Authority (NEMA).
The residents association and the company claimed NEMA had not responded to its request to provide information necessary to comply with the said timelines.
Muite they told the court of appeal Judges that there was a candid disclosure on the part on their part and therefore in their view, there is an arguable ground as to whether the applicants should be penalised for noncompliance with the alternative remedy.
SC Muite argued that if not orders issued and Airview Properties ltd allowed to continue with construction and left unchecked, and the appeal eventually succeeds, the question that immediately arises is whether or not this is reversible.
“It may not be easy to undo the construction once completed, and the destruction to the environment more so the river, threatened by the construction, may never be revived thereafter,” added Muite.
The dispute emerged from Environment and Land Court where Justice Kamingoi upheld preliminary objection by Airview Properties ltd opposing the Judicial Review application by the company and Peponi Road Resident Association.
Airview Properties ltd opposed the application by saying the Environment and Land Court had no jurisdiction to hear the matter.
NEMA was represented by lawyer Edward Gitonga.
