How developers use corrupt officials to push through city projects

Sometime in February 2016, members of the Runda Gardens Residents Association were thrilled when City Hall officially notified them that the change of use that had been granted to a private developer, Yasin Mohammed, had been cancelled.

The residents had petitioned City Hall since October 2015, first objecting to the planned change of use of LR 12672/2014 from residential to petrol station, and two months later they protested when the county government disregarded their concerns and approved the change of use.

In the letter dated February 12, 2016, a Mr Mutegi D, acting for the director of urban planning at City Hall, wrote to National Land Commission (NLC) chairman Muhammad Swazuri and copied it to the residents’ association telling them that “the change of use was inadvertently approved with inadequate site details”.

APPROVED

“The site has (since) been found to be unsuitable for a petrol service station. During the planning technical committee meeting held on January 27, 2016, the above approval was cancelled following various objections against the proposed development by the affected neighbours,” the letter categorically stated.

But the residents’ celebrations may have been premature as, five months later, City Hall backtracked on the February 12, 2016 letter and approved the building plans and, according to the residents, “construction works started in earnest”.

Fed up with the games being played at City Hall, the residents filed two cases, ELC 1283/2016 and ELC 518/2017, both of which are still pending in court.

The story of the Runda Gardens Residents Association is one replicated in many estates in Nairobi where private developers in collusion with corrupt officials at City Hall’s planning department and the National Environment Management Authority (Nema) exploit gaps and weaknesses in the law to disregard affected neighbours’ concerns or simply do not seek neighbours’ views during environmental impact assessments (EIA).

Besides the Runda Gardens Residents Association case, the Sunday Nation has received similar complaints opposing six other developments in Nairobi.

GREENERY

These are a hotel being constructed on Gigiri Drive in Gigiri (NRBI/BLK/91/47), shop and hotel suites also in Gigiri (NRBI/BLK/91/239) and the proposed Cytonn Towers at the junction of Elgeyo Marakwet and Argwings Kodhek roads in Kilimani.

The Cytonn Towers development is being opposed by residents through the Kilimani Project Foundation.

“We have raised a number of issues and concerns on the proposed development including incompatible land use, traffic, utilities, health of Cavina (School) children during construction, privacy of children and neighbours during and after construction, urban heat island effect because of a building of such magnitude (this means increased local temperatures), storm water drainage, urban greenery and security,” the executive director of Kilimani Project Foundation, Mr Constant Cap, says in one of the letters inviting residents to a meeting that was to take place on April 14 and which was to be attended by Cytonn Investments staff.

The Foundation told the Sunday Nation that even though it met with the developer and the EIA consultant, residents’ concerns were not fully addressed.

Meanwhile, Mr Cap says the Foundation has discovered that City Hall had granted the necessary approvals just before the 2017 elections.

CONSULTATION

Other developments also being contested by residents include the construction of a temple and auxiliary facilities on Loresho Ridge (LR Nos.9729/2, 9729/6 & 9729/7) by Shree Sthanakvasi Jain Community (SSJC) but which is opposed by Loresho North Residents Company; a hotel development in The Paddocks area; a residential area in Runda (LR Nos. 7785/1360 – 1374); and another development in The Grove (LR Nos. 29173, 7785/345 & 7785/352).

“It is a big issue because we have developers who have their way through the system. It was there when (Dr Evans) Kidero was governor but they are now growing bolder by the day,” says Henry Ochieng, the chief executive officer of the Kenya Alliance of Resident Associations (Kara). Kara is the umbrella body of residents’ associations in the country.

According to Mr Ochieng, while the problem of private developers colluding with corrupt officials to exploit loopholes is prevalent in Nairobi, it is essentially a countrywide problem.

“In a month, we receive between 15 and 20 complaints from across the country. The complaints relate to irregular change of use, lack of consultation with residents and how the development is going to affect the people’s day-to-day lives, like grabbing of open spaces for sports within an estate,” Mr Ochieng says.

INFORMAL

The alliance had in 2016 facilitated the development and enactment of legislation for Nairobi and Kiambu counties to provide a platform for collaboration with the county governments and address some of the service delivery challenges, including urban development issues such as change of use and building plans approvals.

But with the mounting complaints, it looks like little attention is being paid to the laws.   

A majority of the complaints, he said, come from high- and middle-income neighbourhoods. “This is because of better-than-average awareness levels amongst these residents. You can imagine what these developers do in low-income and informal settlements,” he said.

Neither City Hall’s chief officer in charge of planning Justus Kathenge nor Nema Director-General Geoffrey Wahungu responded to the Sunday’s Nation’s questions. City Hall officials kept saying they were looking at “two more files and then get back to you”, but never did, while at Nema, only the director-general could respond but he was said to be out of the office attending the devolution conference in Kakamega, several days after he received our questions.

OVERSIGHT

NLC vice-chairperson Abigael Mbagaya says the county government should be able to conclusively and transparently address complaints raised by residents.  

“That is purely the mandate of the county government planning department. As a commission, we have a role to monitor and oversight over planning but at the global level. We need to ask the counties how they have done their plans and whether they have amended them,” said Ms Mbagaya.

Mr Ochieng’ says the biggest weakness in the Environmental Management and Coordination Act (EMCA), 1999 in so far as EIA is concerned is that the developer is the one who hires the consultant to undertake the assessment.

“Since these consultants are in business, they would not want to give a negative report lest they lose out in future business engagements. What therefore happens is that the consultants take the forms that are supposed to be filled to passers-by and non-existent entities instead of the residents who will be affected by the planned development. They make these look like the views of the residents when in reality they have not spoken to any resident,” he said.

REPORT

In a case currently before the National Environment Tribunal (NET), members of Gigiri Village Association who have challenged the construction of the five-storey commercial building on Gigiri Drive overlooking the embassies of US and Kingdom of Morocco, High Commission of Botswana and the UN Offices also cite questionable EIA as one of the grounds.

Gigiri Village Association say the developer, White Horse Investments Ltd, presented a project report which is limited in scope as opposed to environmental impact study which would have included traffic impact assessment, sound pollution, provisions for waste disposal system but which curiously was accepted and on whose strength NEMA granted an EIA license.

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.

Apparently under EMCA, unless those who will be affected by the planned development request for a copy, NEMA is under no obligation to share the EIA licence. This is based on the sometimes false assumption that the residents’ views had been captured by the consultant who undertook EIA.

BLAME

Yet another weakness that has been noted is the lack of coordination among the government agencies that often give approvals. Other than City Hall and NEMA, other agencies who separately often give approvals are National Construction Authority (NCA) and Water Resources Management Authority (WARMA) in case the development is close to a water resource among others.

With the process of getting approvals and each agency often working independent of each other, Mr Ochieng says cases of running away from blame are common.

With such a scattered process, developers take that advantage to corruptly obtain approvals.

ZONING

Meanwhile at City Hall’s planning department, the Sunday Nation was told of a corruption cartel which knows the place inside out and whatever the challenge is with change of user, they will get it sorted as long as one is ready to part with money.

So many buildings that have collapsed and caused hundreds of fatalities got approvals from City Hall and their construction was often inspected. For instance, Gigiri where White Horse Investments Ltd is almost completing a five-storey commercial building (shops and hotel suite) falls under Zone 13 as per the Nairobi County government zoning policy which designates the area as “low residential one-family development.” It begs the question how the developer managed to get a change of user and approvals for building plans without City Hall amending its zoning policy.