Developers Face Legal Setbacks
Developers Face Setback as Court Mandates Community Input in Building Approvals
A ruling by Kenya’s Environment and Land Court has significantly altered the landscape for property developers, emphasizing that local communities hold substantial influence over proposed construction projects.
In a precedent-setting verdict expected to transform the construction sector, the court determined that developers are now obligated to explicitly outline their intended structures for community scrutiny during the approval process. For example, a proposal seeking rezoning (“change of user”) to erect a 20-story tower must now clearly state this intent and actively pursue consent from the area’s residents.
This decision overturns prior practices where developers frequently submitted only minimal or ambiguous details about their projects and rezoning requests.
Justice Benard Eboso stipulated that public notices must now include the identity of the person issuing them and precise instructions for submitting objections. He directly quoted the law’s requirements: “All the above are key elements in public participation. Without them, the purported notice cannot be said to have satisfied the requirements of the law.”
The ruling stemmed from a case involving Markerryl Company, selected to construct Leerand School in Thika. The Kiambu County Executive Committee Member (CECM) had granted the firm approval for rezoning and construction. While the Kisiwa West Estate Residents Welfare Group contested this decision, a Liaison Committee upheld it, concluding Markerryl had met all public participation obligations and the approvals were lawful.
However, Justice Eboso uncovered that the CECM had initially denied Markerryl’s application, only reversing her decision after the Liaison Committee’s finding appeared to endorse the project. The judge invalidated the CECM’s approval, citing inadequate public involvement. He found the CECM acted improperly (“went ‘above board'”) by performing tasks reserved for the Liaison Committee.
Justice Eboso concluded that the exclusion of the community from the decision-making process was a fundamental flaw, severe enough to render the CECM’s approval unconstitutional.
