Nashon Okowa, a construction and real estate expert./HANDOUTGeorge Orwell famously wrote, “To see what is in front of one’s nose needs a constant struggle.” We must remain vigilant and objective to continue seeing things clearly and recognise obvious truths – the self-evident that is sometimes ignored or buried in biased propaganda and wishful thinking.
In fact, Orwell prescribed a way to keep the vigilance lamp burning, he said; “One thing that helps towards it is to keep a diary, or, at any rate, to keep some record of one’s opinions about important events. Otherwise, when some particularly absurd belief is exploded by events, one may simply forget that one ever held it.”
This is about keeping a diary for historical records. The Court of Appeal got its decision manifestly wrong in the Rhapta Road resident’s case.
As a country, I have a strong conviction that we are in a crisis of the empirical truth. And before you point fingers, let me hasten to add that this crisis has many fathers, perhaps even mothers. When you are in the business of being a Kenyan today, sadly, you are, with discouraging frequency, in the business of absurd beliefs.
The truth is regularly being distorted and buried by all and sundry. We must heed George Orwell’s advice to document how far off the curve we sometimes allow ourselves to go. If we don’t, we may begin normalising the patently abnormal.
Over my period of writing regular columns since 2017, I have only criticised a court decision once. Against my better judgment, I have restrained myself from writing columns that admonish court decisions, not because judicial rulings are holy sacrosanct beyond criticism, no. It is because I believe the judiciary is our last line of defence that requires guarding.
Constant criticism would begin to erode public trust in our only cavalry hope. However, there are exemptions when the court blatantly, subconsciously or not gets a monumental ruling all wrong. This, in my view, is what happened in the Civil Appeal no E160 2025b involving Rhapta Road residents versus Nairobi County.
The good judges, sadly, failed to see what was in front of their noses. Before I jump on what the judges got wrong, allow me to qualify that I have no interest in this case other than my deep, well-documented concerns about the growing unplanned, uncoordinated and sporadic developments marooning in Nairobi City.
We, on the sane side, acknowledge it is inevitable that our city landscape must change; it is foolhardy to think otherwise. However, the path to this inevitable change, as we have stated numerously, must be consciously planned and thought through.
Unplanned, sporadic and uncontrolled development approvals, issued at the whims of the eternally greedy county officials, cannot be the path to this inevitable change. Let's now get to the gist of this writing.
First, the learned judges underscored what many of us in this sector have trumpeted since the onset of devolution: that this city requires clarity and accountability in its planning and that this must be done in a participatory and sustainable manner.
Further, they stated that Nairobi City development approvals must be predictable, transparent and capacity-constrained oriented - approval must be in tandem with infrastructure development.
I agree. But that is as far as my agreement goes with this ruling…. What I find absurdly preposterous is that the court of appeal, while correctly acknowledging that the 2021 development control policy that Nairobi County has been using to butcher the city with lacked legal status, then goes ahead to allow its continual use, a document not passed by the county assembly of Nairobi.
Are they
strangers in Jerusalem? For a while now, various Nairobi resident associations
have been helplessly wailing against Nairobi County’s use of illegal policy
documents to do development approval without the County assembly ratification,
then the court, while acknowledging this very fact, allows the county to
continue doing so. Egregious!
Now, you may think the court was provided with genuine reason(s) by the County for this. You are wrong! In their response, the County provided no reason why, since 2021 (4 years), it hasn’t presented this policy document to the county assembly for approval. If you’re in this sector, like I am, then you definitely know why City Hall has no impetus to have this document approved.
This lacuna is rent-paying for many people. If you lodge your drawings for approval at the Nairobi County, you will definitely be told about the colonial zoning of, for example, Kileleshwa being ground plus four floors as the legitimate law. Then, you will be informed that there is room to talk – you all know what that means.
What I find risible is that the court not only condoned this indolence but, to a large extent, celebrated it by giving it a further six months' lifeline of operations. That is six months of reaping developers' pockets off and butchering the green city in the sun – if indeed there is still any green left.
Whose interests were they protecting while many city residents continue to wail? We must ask these hard questions for the record. I’m told there is a major rush by the greedy developers to approve as many developments as possible during this court-given window of impunity.
I honestly understand the rush; many residents’ associations will oppose the 2021 development policy because of the lack of supporting infrastructure. So, if you have some development of a high storey to do, you'd better rush for approval during this court-given window. Unfortunate but true. The Court of Appeal has failed the city.
Development approvals must follow the infrastructure upgrade, not the other way. It is such an obvious planning principle that the court should have been alive to - they didn’t.
They instead chose to perpetuate an illegality that many of us have cried foul about for years. Let’s see what happens within and after the six months. I’m not sanguine, and we are the majority.
The Writer is a Construction and Real Estate Expert.
