Row over housing project in Mombasa goes to court - Beaking Kenya News

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Friday, 2 October 2020

Row over housing project in Mombasa goes to court


A row involving a private developer, residents and a government agency over a housing project in Mombasa has gone to court.

In the matter, investor Hussein Alwy, through his company Mbesa Investments Limited, has sued Nema for issuing a letter seeking to revoke a licence it had issued for the construction of three blocks of apartments in Nyali.

The investor is constructing Naurus Beach Apartments, which comprises two 10-storey blocks and an 18-storey building.

However, 19 immediate neighbours have said no public participation was conducted before embarking on the project. Neighbours claim the apartments will prevent them from ocean view, apart from exposing them to health issues and business losses.

Nine of the neighbours share the same perimeter fence as the project area, seven are on the first row while three are on the second row from the beach.

Nema had issued a show cause letter asking why the licence should not be revoked on grounds of misrepresentation of facts, prompting the investor to move to court to challenge the move.

Resident Fahad Bayusuf was enjoined in the case as an interested party.

On Wednesday, the National Environmental Tribunal sitting in Nairobi ruled that the case can proceed for a physical court hearing in Mombasa on November 5 and 6 this year. During the hearing, parties are expected to present their witnesses.

The parties opted for a physical hearing, saying the documents were bulky and it would be complicated to take witnesses through documents and statements online.

Tempers flared during the tribunal sitting after Fahad’s lawyer Paul Buti insisted that documents filed by Mbesa Investments Limited's lawyer Sagana Biriq be expunged from tribunal records as they were filed 10 days out of time.

“My client was given 15 days to file his papers to the tribunal and serve all parties. We did that within 12 days and served, leaving an extra three days for them to prepare a response. They were to file and serve by September 21 but never complied until this morning [Wednesday]. I am yet to see the emails,” Buti said.

Biriq told the tribunal that he had filed, though late, further witness statements in response to the residents’ documents and a supplementary affidavit by Nema.

“They should not form part of the case. For Mbesa Limited to belatedly come now and say they have filed documents, that will be a very unfair position for my client because orders will be made and no extension of time has been granted,” Buti added.

The heated argument during the virtual session led to confusion over who was to speak.

Biriq said, “We are yet to be heard and haven’t set a date for hearing. All we did was to file the response.”

Tribunal member Waithaka Ngaruiya said the tribunal was not bound by strict rules or procedures, advising that parties should agree on documents' filing and a hearing date.

He was supported by another member, Kariuki Muigua.

The statement did not go down well with Buti. “Why am I being harassed here yet it is Mbesa Investments Limited who have flouted the rules? This court should protect me for the sake of my client. The documents cannot form the basis of what I should do because I have not seen them,” he said.

But Biriq defended himself saying, “The documents filing will not serve any prejudice to the respondent’s case. We apologise for the delay.”

Tribunal vice chair Christine Kipsang, who chaired the session, had to intervene and asked all parties to wait for the court’s directions after a five-minute recess.

Nema lawyer E K Gitonga also sought to collapse two affidavits from Coast Nema boss Samuel Lopokoiyit and the director general into one so that he could present a single witness.

Gitonga said since there was a court order allowing construction to commence, the hearing date should be fixed within the earliest time possible for a quick disposal of the matter.

Kipsang directed that all pleadings be filed and served. The parties were granted seven days to respond to the company’s pleadings.

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