Wanderi & 10 others v City Executive Committee Member Nairobi City County Physical and Land Use Planning & another (Complaint 003 of 2024)

Wanderi & 10 others v City Executive Committee Member Nairobi City County Physical and Land Use Planning & another (Complaint 003 of 2024) [2024] KEADR 23 (KLR) (1 March 2024) (Determination) Neutral citation: [2024] KEADR 23 (KLR) Republic of Kenya In the County Physical and Land Use Planning Liaison Committees Complaint 003 of 2024 R Monda, Chair March 1, 2024 Between Dennis Mburu Wanderi 1st Applicant Noah Jacob Mwivanda 2nd Applicant Martin Gathogo Wamai 3rd Applicant Leakey Mwangi Mwaura 4th Applicant Leah Njeri Ndicu 5th Applicant Mutembei Ntwiga 6th Applicant Superview Jamii Holdings Limited 7th Applicant Edwin Mubia Gitundu 8th Applicant Pauline Wanjiku Kiriga 9th Applicant Ann Wanjiru Kiriga 10th Applicant Jackson Thua Kihagi 11th Applicant and City Executive Committee Member Nairobi City County Physical And Land Use Planning 1st Respondent Hon Samuel Kogo, Mca Mwiki Ward 2nd Respondent Determination 1.The Nairobi County and Land Use Planning Liaison Committee pursuant to provisions of Section 80(2) of the Physical and Land Use Planning Act, 2019 heard the above appeal No. NCCG/PLUPLC/E003 OF 2024 filed on 19/1/2024 and vide minute 2/15/2/24 dated 15/2/2024 the committee made a determination as follows:-1.The appeal relates to an enforcement notice issued on 23/11/2023 to the appellants being the owners, developers or occupiers of L.R No. 9363/72 along Eastern Bypass and infinity Road.2.The enforcement notice, the subject of the appeal required that the owners, developers or occupiers:a.Stop further development immediately.b.Avail approved plans.3.At the hearing of the appeal the Committee noted that the parties had raised an issue on whether the property was public land or otherwise. The committee directed the parties to limit their arguments to the validity of the enforcement notice since the committee lacked the necessary jurisdiction to investigate, interrogate or otherwise deal with the question of sanctity of title or indeed whether land was public or private or communal.4.The Objectives of development control are well enumerated under section 55 (1) of the Physical and Land Use Planning Act No. 13 of 2019 (hereinafter “PLUPA”). We do not need to rehash them.5.The County is empowered under Section 72 of PLUPA to serve any owner, occupier, agent or developer of property or land with an enforcement notice if it comes to the Notice of the County Executive Member that:a.A developer has commenced development on any land without the required development permission having been obtained.b.Any condition of a development permission granted under the Act has not been complied with.6.Section 72(2) of PLUPA further stipulates what an enforcement notice should contain. It is apparent under the said section that an enforcement notice shall:a.Specify the development alleged to have been carried out without development permission or the conditions of the development permission alleged to have been contravened.b.Specify measures the developer shall take, the date on which the notice shall take effect, the period within which the measures be completed andc.Require within a specified period the demolition or alteration of any building or works or discontinue any use of land or construction of any building or the carrying out of any activities.7.The appellant complained: -a.The notice was defective as Mr. Okuku the person who signed it did not indicate the capacity he was signing or his work force number.b.The land on the enforcement notice had been extinguished by sub division of the same. The notice was issued on a none existing land.c.The notice was not served on the Deputy County Commissioner and Kasarani Police Station.d.The notice was issued by an officer who is not the CECM.8.The County’s Attorney argued that the enforcement notice was valid, having been issued by a technical officer with the Urban Planning and Enforcement. He further argued that, the appellants were asked to produce approved building plans and most of them had not produced plans.9.At the hearing the committee members allowed the appellants who may not have filed their building plans in good time to avail the same for the committees’ consideration. None of the parties filed building plans after the close of hearing. Determination 2.The committee has considered the submissions of the parties and makes the following findings:a.The enforcement notice was validly issued by an officer of the County in requiring the appellant to stop further developments and avail approved plans.b.The Physical and Land Use Planning Act 2019 is applicable to all developments within the County, whether on public land or otherwise.c.There is no provision under the Act or regulations that stipulate that the enforcement Notice must be served on the police.d.The 7th Appellant has duly complied with the enforcement notice with regard to the production of its building approval for its subject plot No. 9363/1774 and 9363/1775. The county is at liberty to peruse and confirm if the conditions granted therein have been met.e.The Notice period stipulated in the enforcement notice dated November 23, 2023 having lapsed, the County Government is hereby mandated and directed to ensure the compliance of the said Enforcement notice as per section 57 of the Physical and Land Use Planning Act 2019 and the Regulations. DATED AT NAIROBI THIS 1ST DAY OF MARCH 2024.ROGERS MONDA - CHAIRPERSON,NAIROBI COUNTY PHYSICAL AND LAND USE PLANNING LIAISION COMMITTEE