Court dismisses case challenging Sh6bn Mombasa housing project

A Sh6 billion affordable housing project by the county government of Mombasa, in partnership with a private developer, will go on after a petition by some residents of Buxton estate challenging its implementation was dismissed by court.

The Environment and Land Court said issues raised by the residents challenging implementation of the project at the estate had been determined by another court four years ago in a petition which involved all 10 county estates.

Justice Sila Munyao ruled that Buxton estate was part of the 10 estates in the previous petition where the court made a determination on various issues among them the right to housing.

“You cannot remove one estate; in the previous petition, Buxton was one of the estates….…the court will not have jurisdiction to re-open the issues,” said Justice Munyao in his 60-page judgment.

No rights violation

Justice Munyao further ruled that he had not found any violation of Buxton estate residents’ rights on the issue of their removal from the houses.

“There was public participation and meetings held (concerning implementation of the project),” said Justice Munyao.

The judge further noted that the tenants had been given 90 days to vacate the houses by the county government instead of one month and that they would receive ex-gratia payment, which was not even in the tenancy agreement.

Through lawyer Gikandi Ngibuni, the residents’ application to have the court suspend its decision for six months to enable them file an appeal was rejected.

Justice Munyao said he was not persuaded by the residents’ application to suspend his decision and that he needed to be convinced through a formal application.

Mr Ngibuni had told the court that they would pursue an appeal even up to the Supreme Court, if need be, since the case was constitutional.

Tenants given six months

The county government, through lawyer Walter Amoko, had opposed the application to suspend the decision saying the residents had six months to prepare to move out of the county estate.

“The court should let the project go on; there is no justification to delay the project anymore,” said Mr Amoko.

The residents wanted a declaration that they have a right to continue occupying the flats in the estate and that the county government and Buxton Point Apartment Ltd, which is set to undertake the project, do not have the powers to interfere with their quiet and peaceful occupation.

In their petition, the residents also wanted a declaration that Buxton Point Apartments Ltd does not have the capacity to deal with any portion of the land where the estate stands.

They argued that current tenants in the housing units at the estate will lose their houses which will be demolished and those to be built will be sold to any willing buyer at commercial rates.

Low income

“The petitioners state that many of them will not have the opportunity of purchasing any such houses as they are people of low income,” part of the petition stated.

The residents argued that Buxton estate stands on 14 acres of public land and the powers to manage and alienate public land is vested on the National Land Commission (NLC).

They argued that the county government acted unlawfully by purporting to alienate public land which they said amounts to a violation of the Constitution.

“Any project that is to be carried out on public land must be subject to the approval of NLC,” the petition stated.

They further claimed that the county government of Mombasa unlawfully used the Public Private Partnership Act to confer a benefit over the use of the public land on Buxton Point Apartments Ltd, rendering the decision illegal.

The residents further say that demolition of the existing flats in the estate and the intended construction of 1,500 units will create disturbances that will have huge social, political and economic implications.

According to the residents, they did not participate in the deliberations that led to the decision that has such a ‘heavy ramification’.

They also argued that the refusal by the county government to provide them information regarding the project raises the question of integrity, accountability, transparency, sustainable development and viability in the implementation of the project.

“The intended eviction will create serious and adverse impacts on the petitioners which include relocation plan, compensation for eviction, comeback plan, tenant purchase plan and payment rates for the new apartment,” the residents further argued.

Comeback plan

They also argued that the county government had failed to issue proper guidelines on the comeback plan for the residents of Buxton in the event the project is completed successfully.

On its part, the county government had argued that the housing project was transparent.

The devolved unit told the court that there was nothing being hidden in the project and that the current over 500 housing units will be replaced by 1,850 new units.

The county also told the court that the project will not render any resident of the estate homeless but will address the issue of housing (deficit) in Mombasa.

The court further heard that Buxton Point Apartment Ltd will offer the houses at affordable rates and that current estate residents will be given priority during the sale (of the houses) once complete.

The county government dismissed allegations that the project is intended to benefit Buxton Point Apartments Ltd.

[email protected]