Introduction
In a judgment[1] delivered on July 28, 2022, the Environment and Land Court in Mombasa declared that a developer intending to make changes to an existing development not anticipated in the original plan should have sought the consent of the unit owners.
Case Summary
The applicant was the owner of three apartments in a three block development. The developer later started constructing an additional apartment above one of the blocks.
The applicant contested the construction of the additional apartment claiming the apartment owners’ consent was not obtained. The developer argued that the apartment owners’ interest was limited to the apartments they had purchased and did not extend to ownership of the land as no management company was created to own the common areas and hold reversionary interest. The developer further argued that the subleases did not prevent him from constructing the additional unit.
Decision
The court in holding the construction of the additional unit was illegal for lack of consent from the apartment owners and the requisite approvals- such as NCA and NEMA – applied principles of the Sectional Properties Act, 2020 (the “SPA”) and the Physical Planning Act (Cap. 286) (repealed) – the law applicable at the time of procuring the development approval. The court also observed that while the subleases did not restrict the developer from constructing additional units, they also did not have a provision permitting the developer to construct additional units.
Impact of the decision
This decision confirms the mandatory compliance provisions of the SPA for sectional units and as discussed in our article here, the need to entrench in the SPA the exemptions currently provided in the SPA regulations to ensure clarity as to where an exemption is available. Even where the SPA does not apply, this decision reminds us of the importance of proper procedure when undertaking developments.
DISCAIMER:
This briefing is a highlight of legislative and policy changes for general use only. It does not create an advocate-client relationship between sender and receiver, nor does it constitute legal advice or legal opinion. You should not act or rely on this legal update without first consulting an advocate.
[1] ELC No. 10 of 2016 Khalid Hussein Rehman v Ahmed Jan Mohamed Suleiman Luhar [unreported]
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DISCLAIMER:
This briefing is a highlight of legislative and policy changes and is intended to be of general use only. It is not intended to create an advocate-client relationship between the sender and the receiver. It does not constitute legal advice or a legal opinion. You should not act or rely on any information contained in this legal update without first seeking the advice of an advocate.
