Building demolition notices are something building owners, mostly around Nairobi, fear getting. It has become common to see buildings go down in Nairobi especially over the past few months. Government bulldozers are not emotional about leaving the building owners counting immense losses. One can argue that they do have emotion; the caterpillar operators give them joy as they turn the storeys of slabs and beams into rubble. Pictures of building owners in Nairobi circulate the news and the social media with one common factor; distraught and disbelief as they watch their buildings being torn down. It is no mean feat buying land in Kenya especially in prime areas such as the leafy suburbs of Runda and Karen. Even in the Nairobi outskirts such as Syokimau, it is substantially cheaper but still quite expensive. Once buying land has drained your pockets, you inject more millions into a real estate project expecting to enjoy the fruits of your labour. Only later, the government provides a notice of evacuation and demolition to burst your bubble. The architect is also a key factor. Can he/she advise the client accordingly to prevent such demolition cases? Many times, the architect together with the construction team (civil/structural engineer, mechanical engineer, contractor) just provide the client with the building and take home fat pay checks when they could have interceded and advised the client.
There are many reasons for the recently experienced demolition cases. Unprofessionalism on the side of the construction team leading to unsafe buildings which are hazardous. Once the government gets wind of such buildings, they are immediately fell down. Another reason is discovery of buildings which are on riparian land which according to the law is not acceptable. This paper intends to discuss the reasons for rise in building demolition and the role of the construction team, more so the architect and his/ her duties to the client in order to determine whether such circumstances can be prevented in the future.
According to the Laws Of Kenya, (Chapter 525) the responsibilities of the architect are prescribed as follows: (b) advise his clients, study their needs, to prepare, direct and co-ordinate design and to supervise works executed under a building contract. (h) give such periodic supervision and inspection as may be necessary to ensure that the works are being executed in general accordance with the contract; constant supervision does not form part of his normal duties. An architect attempts to understand the requirements of his clients in terms of how a structure can address their particular issues, comes up with a design that works as the solution to those issues and ensures that this is built. in order for this to happen, there are a fair few issues that the architect needs to take cognizance of: there are the laws of the country (such as The Building Code), county zoning regulations, permissible built-up areas, NEMA requirements, riparian lines, building lines, provision of services (water, electricity, sewerage) and so on. Add on to that other factors: provision of adequate natural lighting, ventilation, principles of design (symmetry, rhythm etc), language of design (modern, rustic, art-deco) Then comes the all-important question: finances and budget. An architect needs to be constantly aware of the financial abilities of the client, and ensure that, in as far as possible, the client is able to get a structure that not only answers the majority of the questions raised. Furthermore, we are then tasked with ensuring that this solution we have come up with is actually built the way it was designed. Cue many hours of supervision on site, constantly monitoring the progress on-site, evaluating the running cost of the project (where the quantity surveyors provide an invaluable service), clarifying details and queries and ensuring the structure is sound (although the final responsibility will always lie with the structural engineer and the contractor). Add onto that the fact that the architect, in most cases, also acts as an adjudicator/mediator in instances of disputes arising on site between the client and contractor.
With all those duties taken into account, one starts to question why many demolition cases arising in Nairobi are mainly because of building built on riparian land. According to Merriam-Webster, the definition of riparian is relating to or living or located on the bank of a natural watercourse (such as a river) or sometimes of a lake or a tidewater. Riparian land therefore refers to the region of land bordering any natural channel or depression in which water flows regularly or intermittently such as the banks of rivers and streams. The riparian land stretches to a minimum of 6 metres up to a maximum of 30 metres on either side of the watercourse banks from the highest water level according to the Survey Act of 1989, and Water Quality Regulations (2006) and Water Resources Management Rules (2007). This distance is based on the width of the river and the water volume at any given time. The Survey Act further prescribes setback distance for oceans as 60 meters. Riparian land plays a crucial role as a buffer zone for wetlands in terms of preventing soil erosion, and other causes of degradation. The Water Act 2016 defines riparian habitat as “the dynamic complex of plant, animal and micro-organism communities and their non-living environment adjacent to and associated with a watercourse”. According to this Act, the Water and Sanitation Cabinet Secretary (CS) is required to formulate a National Water Resource Strategy through public participation every five years and submit an assessment report annually on the same. The strategy, among other things, outlines “measures for the protection, conservation, control and management of water resources and approved land use for the riparian area”. The character and condition of the riparian habitat hence are as important as the in-stream habitat in conserving the quality of the water resource and supporting the ecosystem. Encroachment of the riparian lands in Nairobi by private developers does not only obstruct the watercourses but also poses risk to the sustenance of the riparian ecosystem. Riparian areas, which are also a key component of wetlands, are considered unsafe for construction due to the underground water systems that may weaken the foundations making the buildings potentially dangerous. A March 2011 order issued by NEMA directing those encroaching into wetlands and adjacent riparian land to vacate noted that wetlands also include swamps, springs, dams, rivers, lakes, deltas, estuaries, mangroves among others. “Wetlands are important as they provide ecological services including sieving up aquatic pollutants, acting as biodiversity habitat, recharging underground water systems and help mitigating floods by regulating storm-water flow over time and increase water retention. “The areas also aid in climate change adaptation as they support flora and fauna, recharge aquifers during the dry season, help in nutrient retention and shoreline stabilization,” the order by NEMA concludes.
the government should issue notices to property owners or tenants to move out before embarking on demolitions. The law requires the government to compensate — at market rates — legal property owners whose investments are acquired or demolished for development. It is wise to engage a certified valuer to value the property and have a valuation report upon receiving demolition notice from the state. The government often compensates legally registered owners when a property is either demolished or compulsorily acquired for public development. Owners who feel that the compensation is below their expectations can move to the High Court to demand adequate and just compensation. The Bill of Rights under Article 40 of the Constitution provides for protection of right to private property. The rights, however, do not extend to owners who unlawfully acquired a property. Provisions may also be made for compensation to be paid to occupants in good faith and may not have title deeds. Property owners can also go to court to stop the state from demolishing their buildings to improve infrastructure. Take the case of 29 residents of the posh Runda Estate who moved to court to stop demolitions to pave way for the construction of the 21-kilometre Northern Bypass. Highways Authority and Kenya Urban Roads Authority told Lady Justice Mumbi Ngugi that the residents constructed their homes valued at over Sh2 billion on a road reserve. The High Court heard that the government had issued notices warning the developers that they were building on a reserve meant for a public road. The case is ongoing.
land use policy can be a powerful tool for accelerating development in Kenya. Such policy can unlock immense value. It can also structure Kenyans choices on how they deploy their labor, where they send their children to school, the hospitals they attend, among other choices. The fact that as a country our land use remains singularly haphazard should be a seen as a deliberate wastage of public resources. In other words, the government should not stop at demolishing buildings. The next logical step should be to streamline the construction industry, from the permitting authorities, to private architectural and construction firms, to the licensing of brick layers. Your opinion is valuable. Take this quick survey to help us improve the website and content All this should be part of a coherent process to standardise building codes across the country. Such standardisation will allow not only for easy regulation, but will also open up markets for land and buildings. Ease of valuation will allow for deeper financialisation of the construction industry. Beyond standardising the regulations, zoning standards, and building codes, the government should also consider building proper storm drains. The fact of the matter is that Nairobi will only get denser over time. Eventually, we will not be able to afford large tracts of land for runoff drainage. Here, too, zoning and regulation can help us achieve the desired results. Proper mapping of human settlement in our urban areas would facilitate the construction of the needed drainage systems. And the government need not bear all the cost of such construction projects. The private sector as well as the individuals served with such drainage systems can be incentivized to pay for them.
National Construction Authority (NCA) and the National Environment Management Authority (NEMA) say they will now focus more on educating Kenyans on the ‘necessary legal requirements’ for developers to avoid demolitions.The two government institutions observe that with some 4,000 buildings targeted for demolition in Kenya, there is urgent need for construction professionals to review the correct legal approval process as a means of safeguarding future projects and avoid losses occasioned by demolitions.
According Steve Ogolla, an advocate of High Court, all demolition must have written notice given to inhabitants of area to be affected in advance. The notice should have and allow sufficient time for occupants to vacate. “Sufficient time depends on the property value in the area and, or urgency of the new development being initiated. Timeframe could be two weeks, one month, three months or even one year but with a reminder a few days to eviction,” Ogolla explained. However, said Ogolla, both parties involved must agree on the terms and conditions of the written notice in terms of compensation, re-allocation and or payment whichever both parties consider comfortable. For compensation, it is always advisable for developers to seek the help of registered valuers who would rate the property in accordance with the existing market rates, and have a valuation report ready after receiving the demolition notice. While property owners can seek legal redress, the law does not require the State or its agencies to engage the public in the decision to acquire land. It only does so to establish who is eligible for compensation and for Environmental Impact Assessment (EIA) purposes. Ogolla clarified that wrecking crew are not supposed to destroy occupants’ properties in any way. Compensation depends on property and land value in the current market rate and sometimes disturbance allowance. “So compensation is to all victims regardless of structures being legal or illegally erected. This is according to Constitution 2010, Article 40 (4) Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land,” Ogolla stipulated. “However, (6) the rights under this Article do not extend to any property that has been found to have been unlawfully acquired,” he noted. The Constitution of Kenya in Chapter Four on the Bill of Rights and other provisions have a direct impact on right to housing in general and particularly on evictions. Article 10 on national values and principles of governance include among others commitment to human dignity and human rights including non-discrimination and protection of the marginalized. Ogolla quoted Kenyan Laws on eviction procedures as in the Land Laws Amendment Act 2016 which spells out mandatory procedures to be followed during evictions. “Evictions must, therefore, be carried out in a manner that respects dignity, right to life and security of those being evicted. Special groups who are vulnerable such as women, children, the elderly and persons with disabilities must have effective special measures to protect them,” Ogolla stressed. Measures must be put in place to ensure that there is no arbitrary loss of property or possession left behind involuntarily developed. Again there should be minimum use of force. “The Land Laws Amendment Act 2016 provides that those who are carrying out the evictions or demolitions to be properly identified,” Ogolla stated. Formal authorisation for the eviction must be presented before anything takes place.” Government officials or their representatives must be present during an eviction of groups of people. Mechanisms to protect destruction of property and possessions left behind involuntarily developed. In the event of an eviction from unregistered community land, the County Executive Committee member responsible for land matters shall notify affected persons. This needs to be done by notice in gazette with national circulation, radio announcement in local language or community radio, and all these done at least three months before the eviction. As per the Constitution of Kenya Article 62, land is public when at the effective date it was unalienated government land as defined by an Act of Parliament. In other words, it is land lawfully held, used or occupied by any state organ, except any such land that is occupied by the state organ as lessee under a private lease. Public land can also be transferred to the State by the way of sale, or land in respect of which no heir can be identified by any legal process. Other public land are government forests other than those that apply to Article 63(2) (d) (i) applies, game reserves, water catchment areas, national parks, government animal sanctuaries and specially protected areas such as rivers and lakes among other water bodies that are defined by an Act of Parliament. Another common question asked by most people is, how should property that is left behind after an eviction be handled. Whether on public land, unregistered or registered land, this has to be defined seven days from the date of eviction. This is done by a competent officer in case of public or unregistered community land, and the land owners in case of registered community or private land shall remove or by public auction any unclaimed property left behind after an eviction. Article 40 of the Constitution stipulates that (1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property (a) of any description; and (b) in any part of Kenya. Further, Parliament shall not enact a law that permits the State or any person, (a) to arbitrarily deprive a person of property of any description or any interest in, or right over, any property of any description; or (b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).