In August 2016, the Nairobi City County government commenced a process of regularising all unapproved buildings. This is in line with the provisions of the Nairobi City County Regularisation of Developments Act, (No. 3) of 2015, the National Physical Planning Act, CAP 286 and Part (V), specifically sections 31, 30 (i) and (52), which call for the regularisation of developments in the county.
However, city landlords have not owned the process over the years as they view it as a way to open up their businesses to the taxman. It is for this reason that the Nairobi government has been holding meetings with landlords to sensitise them on the importance of having their building plans approved.
“I have been engaging property owners at the ward level so that they can own the process. It is picking up,” says Ms Winfred Aluoch, the ward administrator for Upper Savannah.
The Regularisation Bill is a policy document that seeks to legally approve buildings whose construction plans were not originally permitted. This includes buildings that do not conform to approved plans, such as those where the plans only approved four floors but the developer has built more floors or any other irregularity.
“The exercise seeks to enable existing developments (building structures, change of use, subdivisions, and such others) to be implemented without requisite approvals, and to secure such approvals,” says Ms Aluoch.
But to qualify for regularisation under the Nairobi City County Regularization of Developments Act of 2015, the development must meet planning regulations and must be structurally sound. For a building to be regularised, the developer must produce a title deed or share certificate, a survey plan, a report from the engineer and architect involved in the project, photos of the building, practising certificate of both the engineer and architect.
To property owners, regularisation of buildings has multiple benefits.
“Once a building has been approved, it is certified as safe for occupation and the liability shifts to Nairobi City County,” adds Ms Aluoch. The property owner too does not run the risk of the building being demolished.
A number of agencies, among them Kenyasoko, a property management company, are working with ward representatives in Nairobi to ensure that the process runs smoothly. Kenyasoko is linking landlords with structural engineers and architects who are registered and who are privy to the regularisation process. The professionals have to draw and approve the building plan in its current state.
“They also provide a report as to whether the structure is safe for occupation,” says Ms Aluoch.
She adds that once a building has been regularised, it has the necessary paperwork to be used as collateral for a bank loan. The property can also be sold after this process.
“If it is an apartment, the owner can even subdivide the building and sell off some of the units. This will enable them to extract some money from some of their property to generate more wealth,” says Mr Victor Mungai, a director at Kenyasoko.
“Kenyasoko is also advancing property owners a loan secured with their rental income so that they can foot the charges required in the regularisation exercise,” he adds. The firm is also co-signing for property owners as bank loan guarantors.
“We want to assist landlords to comply with the law,” says Mr Mungai.
The formula for calculating the cost is the actual size of the house in square metres (the plinth area) multiplied by 0.05, then again multiplied by 24000. A Sh50,000 fine for building without approval is added to the amount.
Developers are also required to pay for the cost of the architect and engineer.
Agents like Kenyasoko negotiate for group deals, making regularisation an affordable communal activity where property owners also benefit from having the right professionals who also understand the regularisation process.
Even with this, the cost is minimal compared with property owners having their buildings demolished. Nairobi Governor Mike Sonko has already ordered an audit of all unregularised buildings in the county.
“It might cost developers more if they do not regularise their buildings as a matter of urgency,” adds Mr Mungai. “City Hall has opened the widow period for ward representatives to facilitate the process, but there is no certainty as to when this might close.”
Regularisation of private developments can be categorised into finished buildings, ongoing construction and planned construction. Among finished buildings, regularisation takes care of buildings that are complete and already occupied but the plans were never approved by the county government.
In ongoing construction, regularisation takes care of developments that have already begun but do not have approved plans from the county government. In this case, the developer, during the process of construction, can engage the county planners on advice and regular inspection by the technical officer, and after completion the construction can be regularised.
For planned construction, the developer has to involve the county planner so that they can acquire the right documents before they start the construction.
Section 12 of the Nairobi City County Regularization Act provides that failure to submit for regularisation of illegal and unapproved structures will be subject to enforcement action, including demolition, disconnection of water and other services and eviction of occupants of such structures.
“Non-compliance might see property owners pay hefty fines or the buildings certified as unsafe,” says Ms Aluoch.