Recently in Kenya there has been an increase in the number of buildings that have been demolished and this has led to a number several questions that have been raised in the construction industry. The construction industry is a vital component of the economy of Kenya as it a major contributor to the Gross Domestic Product of our country. In the long run, construction is what provides for employment opportunities for the skilled and unskilled people since construction provides infrastructure that is necessary for the industries to grow and provide employment. Examples of infrastructure that the construction industry provides are such as roads, bridges, houses, power plants, telecommunications, airports and rail. The cost of production, employment creation, access to markets, and investment are factors that are affected by the quality of infrastructure. Since the construction industry is a very important part of the country as well as architects who are usually in charge of the design and planning process, the construction process which involves project conception, design and planning, project procurement, project finance, project implementation and operation and maintenance should be taken seriously and guided with a code of rules to ensure that the end product is of good quality. The government and stakeholders of the construction process should have regulations that are to be followed so that there are minimum requirements that are supposed to be met in the construction of buildings such as use of proper construction materials that are not harmful to man, effective protection against fire, structural soundness, environmental protection, proper accessibility and not crossing into the riparian land during construction.
Demolition of buildings occurs:
• When the building contains has a weak foundation and the condition is evident when a symptom such as uneven cracks on the interior and exterior of walls. The cause of a weak foundation can be from land shifting and /or sinking of the building. The other cause could be that the foundation’s materials could have degraded to the point that it is not holding the building properly.
• When the cost of demolishing a house is less compared to the cost it would take to repair the condemned structure.
• When the building is declared uninhabitable by the government or NEMA
• When a building has been infested with rats, termites, bees and other opportunistic critters.
• When the building has been constructed on riparian land.
• When the building contains dangerous materials such as asbestos.
• When the local government changes building codes or local regulations that force building owners to make expensive renovations that would not benefit the value of their building.
• When the building doesn’t adhere to the building codes and regulations
The following cases show examples of buildings that were demolished and how demolition could have been avoided:
MULTIPLE HAULIERS EAST AFRICA (PETITIONER) VERSUS THE ATTORNEY GENERAL (1ST RESPONDENT), KENYA URBAN ROADS AUTHORITY, (2ND RESPONDENT)MINISTRY OF ROADS(3RD RESPONDENT),THE PERMANENT SECRETARY, MINISTRY OF ROADS (4TH RESPONDENT), THE MINISTRY OF LAND(5TH RESPONDENT), THE PERMANENT SECRETARY, MINISTRY OF LANDS (6TH RESPONDENT), THE MINISTER, MINISTRY OF LOCAL GOVERNMENT (7TH RESPONDENT), MINISTRY OF LOCAL GOVERNMENT (8TH RESPONDENT), THE DIRECTOR OF CITY PLANNING, CITY COUNCIL OFNAIROBI (9TH RESPONDENT),THE CITY COUNCIL OF NAIROBI(10TH RESPONDENT) AND NIC BANK (INTERESTED PARTY)
There were two land plots namely L.R. No9042/607 and L.R. No9042/608 which are located at the junction of Airport North and South Roads at Embakasi in Nairobi. The petitioner who is Multiple Hauliers East Africa is engaged in long haul transportation businesses in the region of East Africa is the owner of the two plots. The respondents entered its property on November 19th, 2010 and demolished the office blocks and structures within the perimeter of the two plots of land. The petitioner had agreed to buy the two plots on 22nd September 2003 from Realty Brokers Limited. The petitioner terms the actions of the respondents unconstitutional and a violation of its right to property and seeks various declarations and orders in respect of the said violation. The petitioner stated that since the transfer to and the registration of the property, the government had always demanded, and the petitioner had diligently ensured that they paid the government land rates and rent based on the size and value of the suit property. The petition stated that
“An Order of declaration declaring that the Petitioner owns and is entitled to all those properties known as LR No. 9042/607, Deed Plan No. 203396 and L.R. No. 9042/608, Deed plan No. 223397 Nairobi.
An Order of declaration declaring that the action of the Respondents of demolishing the Petitioner’s property in all those properties known as LR No. 9042/607, Deed Plan No. 203396 and L.R. No. 9042/608, Deed Plan No. 203397 Nairobi is unfair, unjust, unlawful and unconstitutional.
An Order declaration declaring that the Respondents’ action in seeking to curtail, undermine and/or deprive the Petitioner of the Petitioner’s right to all those properties known as LR No. 9042/607, Deed Plan No. 203396 and L.R. No. 9042/608, Deed Plan No. 203397 Nairobi without just cause and adequate compensation is unfair, unlawful and unconstitutional.”
The argument by the respondent appears to be that since there is very contested and contradictory evidence before the Court, the Court is divested of jurisdiction to handle the matter. However, the fact that there are contested issues does not of itself divest the Court of jurisdiction. Even where there are contested facts, it is the duty of the Court to weigh the evidence before it and test where the truth lies. As Majanja J observed in the case of Sonia Kwamboka Rasugu -vs- Sandalwood Hotel and Resort Limited and Others Nairobi High Court Petition No. 156 of 2011 2013 eKLR;
“26 When the court is faced with such contradictory assertions and evidence, the court will seek to establish where the truth lies, and this is by placing the evidence of the contesting parties and determine the likelihood of one version over the other. It does not matter whether the matter is an ordinary civil suit, or a petition filed under Article 22 to enforce fundamental rights and freedoms. In each case, the duty of the court is to weigh the facts and evidence on either side, whether it is presented orally or by affidavit and make a finding. The respondents’ submission that the contested evidence can only be solved in a civil court is mistaken and lacks merit.”
WE CARE ABOUT NAIROBI DO IT (1ST APPELLLANT) AND KYUNA & SHANZU ROAD RSIDENTS (2ND APPELLANT) VERSUS NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY (1ST RESPONDENT) AND M/S. HOUSES AND PLOTS LIMITED (2ND RESPONDENT).
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The appellants; We Care About Nairobi Do It and Kyuna & Shunza Road Residents Association entered an appeal against the Director General of NEMA and the proponent of the project , House and Plots Limited to challenge the initial approval of the EIA report for the proposed construction of twenty three houses on LR 7158/53 subsequently LR 7158/385 – 388 without approved architectural and structural plans and amalgamation of the plots LR 7157/385 – 388. We Care About Nairobi Do It and Kyuna & Shunza Road Residents requested the NEMA Tribunal to order the demolition of the illegal buildings. However, NEMA failed to act after being asked to by the appellants and House and Plots Limited gave false information to NEMA in support of the application of the EIA license. House and Plots Limited took advantage of NEMA’s negligence and proceeded with construction of the illegal structures and although the EIA project approval was cancelled, NEMA did not order for the demolition of the illegally constructed structures. When the Tribunal visited the site so that they could give a ruling, they found out that the land is sloppy with houses under construction, River Kibagare is at the bottom where trees had been cut and stumps spread out and only a few old trees remained standing by partly built up houses. After listening to witnesses and representatives of the respondents, the appellants claimed that the conditions by NEMA had not been observed by House and Plot Limited as a wetland had been interfered with, trees had been cut down and the required and appropriate distance from the highest water mark was ignored since some houses were under construction too close to the river. The construction of a swimming pool was planned, and green spaces were not existent and was replaced by concrete at the estimated ground coverage of 80-90 percent including the buildings. The respondents argued that they had reduced the number of houses to being constructed from 23 to 20 thus leaving an area without buildings but the houses being constructed are still on the riparian reserve. The appellants still demanded that some more houses be demolished but the proponent maintained that they had complied with the law. While the City Council was the appropriate authority to approve or disapprove the construction of the twenty houses , other issues also arose like: whether NEMA was right in law to cancel the approval of the EIA, whether the riparian reserve was respected or not and the status of that practice ,whether the demolition and the new EIA study should be carried out or what other orders should be issued and whether there were consultations with the neighbours as required by the law or not during the EIA and change of user processes. Eventually the tribunal decided that the proponent; House and Plot Limited takes measures to ensure that there is no encroachment at all into the riparian reserve, in place of a swimming pool and a gym, an are should be set aside for green space and a playground and as many trees as possible should be planted on the area and that the cut ground and retaining walls should be reinforced using designs by competent, registered and licensed engineers to ensure that no erosion or landslides will occur in the future.
MUNICIPAL OF KIAMBU(APPLICANT) VERSUS REX THROUGH MEDICAL OFFICER OF HEALTH, KIAMBU (RESPONDENT)
The Medical Officer of Health, by three notices that were dated 24th November, 1937, where he stated that he was satisfied with the existence of a nuisance at the three sets of premises owned by the applicant and situate at the Wangigi Market in the