Court orders developer to provide playing field in landmark verdict

A court in Nairobi has ordered a developer to provide a playground for children away from their parents’ parking lot within 90 days.

In a landmark judgement that has direct ramification on real estate development, Justice James Makau ordered Chigwell Holdings Limited to provide a play area for children at Phenom Park Estate in Langata, Nairobi County.

He argued that a swimming pool and a clubhouse were not enough for children to play.

“The petitioners have submitted and demonstrated that their children’s right to human dignity has been violated. There is no playground in the estate, hence they have been left to compete with motor vehicles for space thus exposing them to danger,” ruled Justice Makau.

According to the judge, Chigwell had violated children’s rights by failing to heed the complaints by their parents. He observed that minors are left to compete with motor vehicles. According to the judge, this exposes minors to danger.

“The fact that the respondent has not made any effort since the petitioners raised the matte portrays a breach of the children’s right to human dignity. The respondent does not in my view consider the children important to have the issue addressed,” he said.

At the same time, the contractor has been ordered to provide a water filtration system for each house in phases one, two, and three.

At the heart of the battle between the homeowners and the developer was that the latter built houses without a playground.

The borehole, it was also noted, had high concentration of salt and fluoride.

In the case, homeowners led by Mr Erick Otieno, Ms Juliet Nakhanu and Mr Jackson Mwangi stated that they paid a premium sum for the houses on the basis that Chigwell had indicated in its marketing brochure that the project consisted of clean and safe borehole water that would be connected to each house.

They asserted that the brochure also indicated there would be designated play areas. According to them, they realised that the developer had not honoured his end of the bargain when they moved in.

They asked the judge to force Chigwell to provide a playground that should not be less than what is proposed by the World Health Organisation. Further, they asked the court to block the firm from putting up phase four until their concerns were resolved.

They accused the company of breaching their children’s rights to play, and have a healthy environment. The firm opposed the case.

In two affidavits filed by Nirish Shah and Palkesh Shah, Chigwell claimed it had built the houses according to the plan that all owners had, and approved before signing.

According to the company, the playing area was not indicated on the approved architectural plans. The developer stated that the orders being sought were tantamount to rewriting an agreement between the parties.

Chigwell also asked the court to lift the orders barring it from constructing phase four. The company had sued Mr Otieno, Ms Nakhanu, and Mr Mwangi for alleged defamation. It argued that its brochure had provided for children’s playground but never specified for size and kind.

“Hence, requiring the respondent to provide another play area would be making look for an alternative space, interfering with the approved plans and it is an illegality,” replied Chigwell.

Justice Makau sent the court’s deputy registrar on a fact-finding mission. She found that children had no play areas and the spaces which were available were either clotheslines, manholes or electricity torrents.

She concluded that the spaces were not fit for children’s play. The deputy registrar also found out that there was piped water but the residents rely on water from the borehole.