BY SAM ALFAN.
42 residents of Thome Estate have moved to court to block construction of multi-dwelling residential block units in the neighbourhood.
The residents wants the Environment and land court to stop the ongoing construction being carried out by Monica Nyakiringa Ndindiri within Thome Estate Nyati drive, a gated community of controlled development.
The residents including Dr Henderson Irimu , Stephen Gichohi , Charles Kimani, Caroline Muthoni, Peter Waraho, Robert Kioi, Joyce Mukani ,Anne Wanjiku Boro among others wants the court to suspend the construction of the development by Ndindiri.
It is their argument that the construction on Nyati Drive is being undertaken on the strength of unprocedural and illegal withdrawal of an Enforcement Notice issued on 19th October 2021.
“There is real and imminent danger of irreversible damage being done to the surrounding environment should the proposed development be allowed to proceed before the hearing and determination of the subject application and petition,” the residents say in the petition.
They want the court to issue an injunction restraining the developer from continuing with any further construction, pending hearing and determination of their suit.
They claimed that the construction of the apartments is going on at an alarming speed and is likely to carry on and unless stopped by the court.
“Pending the hearing and determination of this application, this honourable court be pleased to stay the Consent Order and Judgment entered in Milimani ELC Petition Number E056 OF 2021 withdrawing the Enforcement Notice dated 19th October 2021,” the residents seek.
They argue that Ndindiri has without planning approvals unlawfully and irregularly commenced construction of a high-rise project, including the construction of 1, 2 and 3 bedroom apartments units.
It is their contention that there was no public participation as required by law and no impact Assessment and Audit Regulations before the project commenced.
They further argue no notices were served to them as the immediate neighbours of the gated community, with a common entry and exit, prior to issuance of change of user (if any) to change the block from a single dwelling residential unit to multi-dwelling.
“No Notices were published in two local dailies (English and Kiswahili) and served upon the Chief as required under Section 52 of the Physical and Land Use Planning Act,” the residents added.
They told the court that they notified the Nairobi County Government, National Construction Authority and National Environment Management Authority of the irregular and unlawful construction who, on the basis of such complaints of the said construction of high rise apartments in a single dwelling zoned area, the Construction Authority and NEMA issued an Enforcement Notice on or about the 19th of October 2021.
Thome residents adds the commencement of the project and the construction thereon are being carried out in violation of the Nairobi City Development Ordinances and Zones and in direct contravention of Section 56 and 57 of the Physical and Land Use Planning Act, 2019 which expressly prohibits constructions being carried out contrary to approved plans.
They claim that Ndindiri has in collusion with the Nairobi County Government withdrawn by consent in court the Enforcement Notice initially issued without regard to complaints and legitimate concerns and expectations of the Petitioners and without having complied with the single dwelling one family unit area designated within Nyati Drive, Thome which is a gated community which is out lawed.
“The construction contravenes the Constitution as it is designed to alter the environment of the area and completely alter the character of the estate to the detriment of the residents who are the petitioners herein,” the petition stated.
They argued that Nairobi County Government, which is mandated to ensure that all the developments are carried out within the law and in compliance with the zoning policy of each area, have now colluded with the Ndindiri and withdrawn an enforcement notice.
They argue that NEMA have allowed the construction of the impugned development without the mandatory ELA report and approval and without taking into consideration the objections received from the area residents who have constructed their single dwelling residential units and have lived in Nyati Drive, Thome whom most members have built their retire homes for over 20 years.
