Man sues developer for building extra floors above his apartment, wins case
Apartment owners have a right to be consulted
over any additional development on their property.
Last week, Justice Sila Munyao issued an order
prohibiting a developer from constructing additional floors on top of existing
apartment blocks sold to an individual in Nyali.
After Khalid Hussein Rehman successfully sued
Ahmed Jan Mohamed Sulieman Luhar for initiating the construction of additional
units above one of the existing blocks they jointly own, Justice Munyao issued
the order.
“Regardless of how you look at it, the
defendant’s proposed additional development cannot stand.” “I am
convinced that the plaintiff has made out a case for a declaration that the
defendant’s proposed construction is unlawful and illegal,” said Justice
Munyao.
The judge ruled that Ahmed, who owns three
blocks in Nyali, can only proceed with the construction of additional flats if
he follows property ownership laws.
Ahmed is required to consult the owners of the
units he has sold before proceeding with the construction of additional
apartments.
Prior to Justice Munyao’s order, Khalid Hussein
Rehman went to court in 2016 and obtained a temporary restraining order
preventing Ahmed Jan Mohamed from constructing additional flats on top of one
of the buildings on his plot number 13,400 Mainland North Mombasa County.
Rehman received the orders after his lawyer,
Gikandi Ngibuini, applied for them, claiming that the developer, Ahmed Jan
Mohamed, had violated his rights by failing to consult him before beginning
construction on top of one of the blocks in Nyali. Gikandi told the court that
his client wanted the court to prevent the developer from erecting an
additional apartment on top of one of the compound’s blocks, which would
prevent him from enjoying a view of the ocean.
Gikandi told the court that despite his client
raising the issue with the developer when he began construction, the developer
ignored the plea and proceeded with the construction without consulting.
The plaintiff, who lives in Toronto, Canada,
provided evidence through his attorney, Afzal Hussein Rehman, demonstrating how
the construction will affect Khalid Hussein Rehman.
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Gikandi explained to the court that his client
was legally entitled to the rooftop area, fence, gate, drive away, stairs, and
parking as part of their shared ownership, which the developer should not
interfere with.
The lawyer explained that despite his client
writing a letter to the developer in 2014 regarding county government approval
issues, the developer ignored him and proceeded with the construction without
consulting him.
“My client wrote a letter to the defendant, a
letter dated August 25 2014, seeking to be supplied with documentary evidence
of the approval, but none were supplied, forcing him to seek redress,” said
Gikandi. But in response, Ahmed Jan Mohamed argued that Khalid Hussein Rehman
ownership of the apartment did not relate to ownership of the plot.
Ahmed Jan claimed that he not only owns the two
apartments he reserved for himself, but also the entire plot because there is
no management company, and that he was the sole owner of the land.
The developer pointed out that, aside from
others, it was only Khalid who had raised the issue of the additional
apartment’s construction.
Jan insisted that the plaintiff, after all, does
not own a unit on block B, where he intended to build the additional apartment.
The developer insisted that he has an agreement
with the complainant for apartments in blocks A and C, but not in block B,
where he does not have a unit.
The judge issued a permanent injunction against
the developer because there is no evidence that he consulted the buyers of the
units in his buildings as required by law.
“I am further persuaded to issue an order of
mandatory injunction, directing the defendant to remove at his cost the
additional development that he had commenced and have the property restored to
the state it was before the impugned construction,” said Justice Munyao.