Gigiri residents want construction of complex stopped

How a multistorey commercial building was approved for construction in a restricted zone in Nairobi’s Gigiri suburbs has now become the subject of a major litigation pitting the residents and a private developer.

The five-storey building on LR 91/239 overlooks the US Embassy, while the High Commission of Botswana and the Embassy of the Kingdom of Morocco are adjacent to it. Two hundred metres away is the UN complex.

Given the sensitivity with which the US and UN in particular normally treat what in this case could be considered intrusion, it is inconceivable how the building has been allowed to reach the level it currently has.

A shoeblack, Mbithi Kimuya, was in 2011 brought to the limelight when diplomatic cables leaked by the whistle-blowing site WikiLeaks revealed how he had rattled the US embassy who suspected he could be spying on them because of the location of his business relative to the embassy. 

Though the appeal (number 2/3 of 2017) that is before the National Environment Management Authority (Nema)’s National Environment Tribunal has been filed by Gigiri Village Association, Sunday Nation has learnt that it has the tacit backing of the neighbouring foreign missions, in particular the Embassy of the Kingdom of Morocco, which is its immediate neighbour.

LAWSUIT

Through lawyer Simon Wekesa, the residents have opposed the construction on grounds of illegal and irregular change of use without getting their views.

The appellants, David Awori and Paul Owora, both officials of Gigiri Village Association, have listed the Director General of Nema, White Horse Investments Ltd, who is the developer, and lead consultant Faith Mugure Mukunga as respondents.

“The development infringes on the neighbours’ right to privacy as it visually intrudes on their property.

"This intrusion causes grave security threat to its immediate neighbours who are the Embassy of the Kingdom of Morocco, the Botswana Chancery, the UN headquarters and the American embassy.

"These establishments are highly sensitive developments whose privacy and security stand to be compromised with the towering development looking into their compounds,” the appeal reads.

ZONE 13
On February 2016, White Horse Investments Ltd applied for a change of use from residential to commercial (shops and hotel suites) and has since been constructing a storied building right on the doorstep of the foreign missions and UN.

This is despite the area being under Zone 13 as per the Nairobi County government zoning policy, which designates the area as “low residential one-family development”.

The residents argue that the developer did a project report which is limited in scope as opposed to environmental impact study, which would have included traffic impact assessment.

They also accuse White Horse Investment of misrepresenting the exact location of the property even when they were applying for approvals.

“The developers provided, and continue to provide, misleading information that the property is located at UN Avenue yet it is located along Gigiri Drive,” they say in their suit papers.

PUBLIC VIEWS
However, the developers have raised a preliminary objection to the petition, arguing that the suit was filed out of time.

They say the appeal was filed a year after the works started instead of within the deadline of 60 days.

The developers also argue that everything including the licensing was done above board.

They also claim public hearings were held.

They list Jim Cab among those whose views were sought even though the taxi firm has no permanent offices in the area.

The hearing of the preliminary objection was supposed to be heard last Tuesday but the lawyer for the residents, Mr Wekesa, requested for more time to familiarise himself with the matter as he had taken the brief only recently.

BY-LAWS
Before he resigned, former Nairobi deputy Governor Polycarp Igathe had on December 2017 visited the site and stopped the construction, saying the work started without following city by-laws.

“I’m here today to stop constructions of this specific building, [the city] having issued specific laws that have been violated by this construction.

"This shows the kind of impunity we have and we are issuing stop orders for illegally approved buildings in Gigiri today,” Mr Igathe said.

Following Mr Igathe’s visit to the site, the construction temporarily stopped for some time only to resume and is currently ongoing.

Ironically, among the neighbours who had opposed the ongoing development is Cabinet Secretary James Macharia whose ministry oversees housing and urban development and who has a property nearby (LR 91/227).

TRAFFIC
Mr Macharia was among residents who on July 12, 2015 petitioned the Nairobi County secretary to “object and oppose the proposed change of use of LR No. Nairobi Block 91/239”.

“The property lies within a residential zone and should not be converted to a commercial premise.

"In addition, the introduction of a commercial building will be bound to increase traffic congestion, which is already experienced as a result of the various business premises within the estate.

"With this increase in traffic, our security as residents stands the risk of being compromised,” Mr Macharia and other residents had stated in their petition.

Despite the protests, the developer proceeded with the construction, which at an advanced stage.

The issue had also been brought to the attention of the former Director of Public Prosecutions, Keriako Tobiko, on May 2014.

Mr Tobiko directed the Directorate of Criminal Investigations to launch investigations into the complaints.