NEMA: A toothless bulldog without the will to tame irregular housing plans in Nairobi

Daniel Mwangi, in his 70s, is a religious man but the backyard of his house in Jamhuri Estate in Nairobi is a litter of cigarette butts and alcohol cans.

Mwangi, a pensioner, would not have this worldly menace in his sight were it not for his truant neighbours forced onto him by some corrupt county officials who approved an illegal high-rise building that has its balconies right inside his compound.

When we visited he said we are lucky the place had been cleaned as we would have stumbled onto used condoms or stepped on broken alcohol glasses.

Drips of water from washed clothes would have showered our heads and we would have been astonished by the display of men and women's underwear hanging on the balconies.

In his retirement years, sitting outside the house and some sunshine would make his day lighter but this is no longer the case.

The highrise buildings have shadowed the compound and trapped cold and wind inside such that the lifetime investment is not enjoyable anymore.

His privacy is not guaranteed. The balconies enable dwellers to peep and drop anything.

At one point, a stone fell from the high-rise building into his son's bedroom. Luckily, he was away at the time. The boulder left a huge hole in the mansionette's roof.

This is a classic case of how unscrupulous businessmen and developers are having their way in the county, getting approvals and flouting the terms.

They get away with it while the National Environment Management Authority (Nema) helplessly points an accusing finger at the county.

The landscape of Nairobi City is gradually changing with high-rise buildings taking over.

Sections of the city, which were controlled, have now been turned into mass residential areas with some of those who dwell in townhouses either being forced to erect their own apartments or relocate.

Those who have remained have to deal with a lack of natural light and lack privacy from unregulated high-rise buildings.

Chaotic city

The proliferation of informal settlements, inadequate infrastructural services, congestion, environmental degradation, unplanned urban settlements, pressure on land, and numerous conflicts are the face of Nairobi.

This chaotic development has drawn the attention of the court with the National Environment Management Authority and Nairobi County being called out for unsupervised development.

Environment and Lands Court Judge David Mugo in his landmark judgment referred to Nema as a toothless dog and recommended a change of laws on how it operates.

At the same time, he referred to the county as a shepherd who was supposed to tend the flock but has turned against the sheep, "eating the fat ones and using their wool to make clothes for himself and his wives.". This is why.

On August 11, 1967, the Nairobi City Council's Social Services and Housing Committee set aside Jamhuri Housing Estate for sale.

The idea behind the estate was to give those who purchased the houses maximum amenities such as playing grounds for children at a minimum cost. The now-defunct council had a special condition in the lease; no new building would be erected on the land, and neither additions nor external alterations would be made to any building.

In the plan, there were 156 three-bedroom homes in 24 blocks, 72 flats in eight blocks and, landscaped open space that was 2.98 hectares, while road reserves, footpaths, and parking areas occupied 2.23 hectares.

Among those who bought the houses is Mwangi.

In his case against Nairobi County, NEMA, the National Lands Commission, Attorney General and the couple Loise Nyaguthii Muriithi and Paul Muhoro Muriithi - owners of the contentious apartment - he narrated that in the late 1990s, things took a dramatic turn when the city council trustee allotted the open spaces and road reserves to third parties.

The City Council of Nairobi christened the irregularly allocated plots 'in-fills.' Aggrieved, the residents through their estate association sued the council in a bid to preserve the estate in 1998.

The High Court issued orders barring the county and persons who were allocated the infills from developing houses.

Diminished value

However, the orders remained on paper as the council proceeded to issue leases for the infills. Some included as late as May 14, 2010, which was issued to Resurge Investment Limited.

Resurge subsequently transferred the property neighbouring Mwangi's house to Nyaguthii and Muhoro.

The two obtained approvals to build a two-storey building in 2015. They, however, put up a seven-storey block of flats next to Mwangi's home.

He said the development caused his house to diminish in value and denied him the right to a quiet enjoyment of his property.

As a result, the house in which Mwangi had been living with his family for over 20 years became inhabitable due to the risks and intrusions highlighted above, forcing him to abandon it and seek residence elsewhere.

Mwangi said although he remains the registered owner of plot L.R. No. 209/6989/64, he is incapacitated because he has been unable to dispose it yet he cannot live there due to the inconveniences. According to him, the block of flats constructed by his neighbours was done in such a way that some of its windows and doors hang into his compound when opened.

Clothes hung out to dry by the tenants in the flat drip water into his compound.

Others, including undergarments, fall into his compound, he says.

According to him, Nema and the county are to blame for aiding Nyaguthii and Muhoro to build the flats.

He singled out Nema for ignoring his complaints regarding the irregular construction. The county opposed the case. According to the county, Jamhuri Estate falls within Zone 4 of the Nairobi urban planning map which allows multi-dwelling units or flats. The National Lands Commission urged the court to dismiss the case as it was wrongly enjoined.

Nema, on the other hand, told the court that it received an Environment Impact Assessment (EIA) report for a proposed two apartments and one caretaker's unit being two storeys with the ground floor being the vehicle parking area.

Nema stated that after it received complaints from Jamhuri Estate Residents Welfare Association, informing it about the orders barring any developments on the land, it declined to process an EIA licence and communicated the same to Nyaguthii and Muhoro.

Blame game

Nema told the court that the unlicensed building has since been completed. The agency pointed an accusing finger at the county and urged the court to take action.

The agency claimed that it only became aware that the project had proceeded with the project of putting up a multi-storeyed building after it was served with this petition.

Earlier on in 2019, the Deputy Registrar of court visited the site. She observed that the building had cracks and had taken away the light from Mwangi's house.

An avocado tree suffered the wrath of development as well, and being deprived of sufficient sunlight rendered it somewhat barren.

Justice Mugo was puzzled by Nema's attempt to blame the county.

He paused:" Is NEMA a toothless bulldog that is all bark and no bite? Who else ought to stop the construction that is proceeding without an EIA licence if not NEMA?"

At the same time, he said developers are taking advantage of the too-many-cooks-of-the-broth to escape oversight. He ordered that Parliament should interrogate the laws and policies governing approvals and streamline them.

"The country has witnessed an increase in the number of high-rise buildings collapsing and killing innocent Kenyans. It is time to take action. The usual rhetoric and empty threats to take stern action and leave no stone unturned has now become too familiar," he said. Justice Mugo ordered the county, and the highrise owners to jointly pay the petitioner Sh14 million in compensation for the damage and reduction of the value of his house.

They are also to pay for the cost of the case.