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Background

In 2016, Mombasa County Government embarked on redeveloping its decades-old, dilapidated estates – an ambitious project that arguably was the spine of its economic plan, Vision 2035.

The project, a public-private-partnership (PPP), was dubbed: “Mombasa urban renewal and redevelopment of old estates”. The county quoted the venture’s cost at about Sh5 billion. Figures kept varying, sometimes hitting a record Sh200 billion, based on media reports and county officials.

The project, according to the county, was to cater to more than 10,000 people in its initial phase. This would have resolved a massive housing deficit, a tenacious challenge the devolved unit has for years – and even today – grappled with. Mombasa can only supply 4,0000 new housing annually against a yearly demand of 25,000 units.

Affected estates were Khadija, Miritini Greenfield, Changamwe, Tudor, Mzizima, Buxton, Likoni, Nyerere, Tom Mboya, and Kaa Chonjo. Combined, the 10 estates have only 3,039 units, many in ruins.

At the time, then County Secretary, Francis Thoya, said the first phase was to develop two new estates and redevelop seven old ones into modern housing. A success meant improved housing facilities and infrastructure to meet the rising demand for housing units in a county where the majority are tenants – not homeowners.

Kaa Chonjo estate. Photo: Ernest Cornel.

Two-floor Khadija estate was to come down first, allowing up to 23-storey flats to go up. But not without an all-out opposition from some tenants of the 100-unit estate. The war revealed political undertones, which provided fodder for politicians running against Mombasa Governor, Hassan Joho, now on his second and final term.

Tenants’ grievances

The county stood accused of sidelining tenants in its housing plans. Tenants got apprehensive over their first right of refusal. Throughout, we witnessed sporadic evictions, sometimes under harsh climatic conditions like heavy showers.

Khadija tenants hurt most. At least once, these tenants suffered the wrath of brute vandals who worked as officers in the county Inspectorate Department – a division charged with critical roles of enforcing compliance by managing regulations and bylaws.

At the heart of the row were claims of lack of structured public forums, despite county insisting dozens of such meetings occurred.

Soon, human rights groups and locals sued to stop constructions. Predictably, the project stumbled, and its fruition turned bleak, at least for that moment.

Who were parties to the suit?

On August 5, 2016, Legal Advice Centre, Haki Yetu St. Patrick’s, Transparency International Kenya (TI), and Jack Maina moved to Mombasa High Court. Their petition – 39/2016 – sought 11 orders, including a permanent injunction to restrain the implementation of the project, which they faulted as “exploitive, corrupt, and inviable”.

In the case, the respondents were Mombasa County Government, County Secretary, and County Executive Committee Member for Land Planning and Housing Department.

County Public Rental Estates Council and Kenya National Commission on Human Rights (KNCHR) joined the suit as interested parties.

The hearing commenced on October 14, 2016, before Judge P.J.O. Otieno.

What issues were up for determination?

A case conference identified four issues for determination, which parties framed as follows:

  1. Whether the “Mombasa County Urban Renewal and Redevelopment of Old Estates Programme” was conceptualized and formulated with public participation under articles 10 and 174 of the constitution as well as sections 87 and 11(1) of the County Government Act?
  2. Whether the respondents breached the Petitioners’ constitutional rights to access information under Article 35 of the constitution.
  3. Whether the “Mombasa County Urban Renewal and Redevelopment of Old Estates Programme” threaten the rights to adequate housing under Article 43(1) b of the constitution.
  4. Whether the programme, (Mombasa County Urban Renewal and Redevelopment of Old Estates Programme) is in breach of various statutory provisions listed in the petition – if this is answered in the negative whether the petition is an abuse of the Court process.

What did petitioners tell the court?

The petitioners did not oppose the project if it would have improved the housing conditions of Mombasa residents. They wanted a guarantee on “resettlement, costs of the housing, use of open spaces and non-increment of rent”. Petitioners insisted the project must comply and conform with the law.

What about the county defence?

In its defence, the county told the court a study and valuation of the property and housing units showed the estates were dilapidated or unsuitable for human habitation.

The county, through then Land Minister, Anthony Njaramba, fortified its defence by annexing various lists detailing names of tenants it consulted and engaged in 29 meetings and briefings. Njaramba put telephone numbers, bank accounts and money against each detail.

And what did the residents’ umbrella body tell the court?

The tenants’ body testified that existing estates are “abysmal with poor infrastructure evident from the inadequate roads, schools, health and recreational facilities, sewer, water, and electricity.” According to the group, the condition of the house infringed on tenants’ right to adequate housing and a healthy environment.

High Court ruling

On December 23, 2016, Judge Otieno dismissed the case and greenlighted the project.

In his verdict, Justice Otieno said, “… information was out there about the programme and valuable time had been employed on discussion around the project and equal time had been employed to study the design, scope and scale thereof.”

The court gave Mombasa County Government powers to decide whom to consult or what inputs to consider.

“It is not a requirement that all stakeholders must be heard,” Otieno ruled. But he said the public forums must be transparent and avail opportunities for all views to be known.

“In the circumstance of this case,” Otieno said, “I don’t doubt that there was public participation.”

“I find that what was done was sufficient and therefore the first issue (whether the project was conceptualized and formulated with public participation) is answered in the affirmative.”

Then the judge ruled: “Save for the orders I have made that the documents be availed and that the law is complied with at every stage of implementing the project, all the prayers are declined and dismissed.”

Otieno allowed the constructions to resume, but the petitioners appealed.

Court of Appeal

A three-bench-judge of A. Visram, W. Karanja, and M. Koome heard the Civil Appeal number 46/2017.

The trio delivered its verdict on July 5, 2018, asserting, “We believe that Mombasa County Government facilitated the public participation of the relevant stakeholders being the tenants in the suit estates through their representative.”

In the upshot, the bench ruled: “We find no merit in the appeal which is hereby dismissed. Being a public interest matter we make no orders as to costs.”

Project kicks off again

Mombasa County tendered the bid for the redevelopment of its estates. It awarded Buxton lot to GulfCap Africa, which quoted a cost of Sh6 billion.

GulfCap Africa brought in Buxton Point Ltd as a Special Purpose Vehicle to execute the project.

Buxton estate has 545 units, and the developer wants to put up 1,860 new apartments of one, two, and three-bedrooms. There will be bedsitters, too.

The developer will sell the houses at Sh1.8 million, Sh3 million, and Sh4.2 million, for one, two, and three-bedroom apartments, respectively. Bedsitter will go for Sh800,000.

The groundbreaking for the two-year project is due January 2, 2021.

Shahbal opposed the project in 2016

GulfCap Africa is chaired by Suleiman Shahbal who in 2016 raised pertinent concerns and exposed gaps in the project.

Then, Shahbal said: “The county government of Mombasa is about to give away prime land in the county – and the people don’t know what they will get in return. While it’s nice to know that these dilapidated estates will be replaced with brand new apartments, how many will belong to us? This lack of clarity fuels our primary objection.”

Shahbal went on: “The county secretary in charge of this project, Mr Jarambe, says these houses will be sold to existing tenants for four million shillings. At this rate, the monthly mortgage rate will Sh58,000 per month. 95 per cent of county employees cannot afford this.”

“The minimum apartment size is 80 square meters. Minimum construction cost is Sh30,000 per square meter. Thus, this tiny apartment should cost Sh2.4 million. Even at this size, the mortgage payment for 20 years at 16 per cent, will end up at Sh33,490 per month. Again, this is quite unaffordable for most tenants.”

Shahbal further weighed on public participation, thus: “Any public investment requires proper public participation where information is disseminated beforehand to enable them to make informed decisions. Public participation is not calling people into a hall and informing them of decisions already made and then giving them beautiful booklets of apartments about to be constructed.”

Shahbal, however, appeared supportive of the project.

“Let me be clear. I support this project. It was part of my economic plan for Mombasa, which is done properly, will revitalize the city and benefit the people living there.”

How was Buxton tender awarded?

We requested Mombasa county to furnish us with details about evaluation and bid analysis. It responded in part. Our other queries did not receive substantive answers. For instance, the county, citing confidentiality, could not disclose to us which companies tendered and criteria used to pick the developer, GulfCap Africa.

“The bid is a confidential document containing sensitive business and intellectual information from bidders, which is protected under the law,” the county told us.

But here is what we know so far about this evaluation and bid process:

The county on July 1, 2019, placed an advert on local dailies, inviting bids. The tender number was: CGM/PRO/T/003/2018-2019. A successful firm(s) was to redevelop the following estates to meet the rising demands for housing units: Khadija, Tudor, Buxton, Tom Mboya, and Kaa Chonjo. The deadline was July 23, 2019.

By the time deadline elapsed, only one developer had tendered. And in the words of county insiders who requested anonymity, “The firm was on a fishing expedition, and did not have the financial and technical capacity to undertake the project.”

This forced the county to extend tender opening by seven more days from July 23, 2019. Another advertisement got placed in newspapers. This time, the county received four bids – and Buxton lot went to GulfCap Africa.

The county on July 1, 2019, placed an advert on local dailies, inviting bids.

 

The county extended tender opening by seven more days from July 23, 2019, and received four bids. Buxton lot went to GulfCap Africa.

GulfCap Africa holds three-day public forum

The developer held three-day public participation from September 3, 2020, at Tononoka Social Hall. We silently observed and recorded deliberations all through.

At the meeting, there was consensus from most tenants that Buxton estate needed redevelopment. But three contentious issues persisted – relocation allowance, right of first refusal, and unit cost.

The county offered Sh300,000 relocation allowance, out of which tenants can deposit Sh60,000 with the developer as a purchase commitment. But some tenants wanted Sh1 million, saying the county offer was meagre.

Three-day public participation underway at Tononoka Social Hall.

The tenants were apprehensive of getting new units once done. They feared moneyed outsiders will edge them out. But the county said parties must sign Vacation Agreement, and tenants issued with Offer Letters, which will give them the right of first refusal. County said it must be sued if it breaches the agreement.

On the cost of units, the county and developer said the scheme allows tenants to own home.

Did Municipal Council build the estates for lowly-incomed?

Some Buxton tenants are genuinely not well off — they find relief in occupying the county houses, whose rent is hardly Sh4,000 for a two-bedroom house.

But contrary to public misconception that majority are lowly-incomed, we found out that quite a big chunk of current tenants understated lives, yet they held well-paying jobs. Others drove and rented houses elsewhere.

When the defunct Municipal Council set up the estates in the 70s, Buxton and others were exclusively occupied by the moneyed.

But how did the so-called “lowly-incomed” ended here; and how did once lavish estates got ruined?

To repair the houses, the Council relied on rents, a meagre fraction of the total operational cost. The Council used to divert revenues from other streams to meet the cost until its wage bill and other overheads bloated, making any kind of repairs, however minor, impossible.

Some tenants stopped paying rent and ignored a notice to vacate. The Council mutely left the maintenance under the care of tenants. But occupiers hardly fixed broken sewers, leaking rooves, cracked walls, faulty power cables and many more wreckages. Devastation kicked in. Over time, original occupiers moved out and started subletting.

Kaa Chonjo estate got condemned. Many more buildings are wrecking. Photo: Ernest Cornel.

While the county is only getting Sh2,800 and Sh3,662 monthly rent for one and two-bedroom units, respectively, a subtenant is singly forking out around Sh8,000 and Sh10,000 for one and two-bedroom houses. This money is not going into county coffers but individuals.

For years, illegal kiosks mushroomed within the estates and generated averagely Sh15,000 each month for “owners”. The estates, therefore, gave spaces for illegal trading the county’s bylaws never contemplated – and which is denying the devolved unit its much-needed revenues.

Corruption also plagued the division of units and allowed an individual to rent more than one house.

Our findings

The current county estates, consisting of ground, first and second floors, do not have proper water, sewage, power, security, and maintenance. Kaa Chonjo estate got condemned. Many more buildings are wrecking.

Most tenants sublet. Subtenants do not have a tenancy agreement with the landlord, the devolved unit. They are, therefore, illegally staying, and may not be eligible for the Sh300,000 relocation allowance, which GulfCap Africa is issuing. The developer, however, has assured none will miss out regardless of their occupation status.

The public participation at Tononka Social Hall was open, properly structured, and allowed enough time for tenants to seek clarification and air grievances. Relevant parties and authorities were present to respond to queries. This type of participation was lacking in 2016 when the project started. The 2020 forum was well attended and was rich in deliberations than in 2016.

We found out that before the three-day public forum, the county and GulfCap Africa held a series of consultative meetings with tenants, including one at Wild Waters Complex. Other meetings occurred at the estate, in line with High Court ruling that public participation should be a continuous process.

Further, we noted that the county – through a letter to all Buxton tenants dated September 21 – informed the occupants that the developer intended to pay their relocation allowance through its Law Firm, Hassan Alawi and Co. Advocates.

The Firm is at Social Security House, Nkurumah Road, second floor. It is at this Firm that tenants will also sign Vacation Agreement and receive Offer Letter that allows one to book a unit of choice. Shahbal, in a press conference on September 17, said cheques will be issued to tenants starting October 1.

Mombasa county letter to all Buxton tenants dated September 21.

We observed that not all tenants will afford the new units. A mortgage plan by Housing Finance Company, which the developer has brought on board, demands a 10 or 20 per cent deposit of the unit cost, with repayment period spanning between five to 20 years.

Of the 1,860 new units at Buxton estate, the county will retain 185 apartments valued at Sh600 million – and whose land cost is approximately Sh480 million. The county remains the landlord. Each tenant will pay his land rates at an amount to be decided by the county.

Our position

Mombasa has a housing deficit of 21,000 units a year – and its annual demand stands at 25,000 units against a supply of 4,000 houses. With 60 per cent of Mombasa’s 1.2 million population living in 72 informal settlements in the county, the Buxton housing project promises to cover the deficit.

We are aware that the developer has assured tenants of their first right of refusal – but this is not done until it is done. We shall follow the process to its tail end, and where the agreement gets breached, we shall sue GulfCap Africa and Mombasa county.

We note that the processes leading to the issuance of relocation allowance and unit bookings have been transparent, unlike in 2016, when these steps got shrouded in secrecy. We will continue observing, and where necessary, take actions that will be at the best interest of tenants.

We affirm that the project will offer better and modern units that are fit for occupation, unlike the current houses, which poses a great risk to occupants. But we recommend that the county and developer to rope in other financial institutions that will give competitive offers to the tenants.

Buxton estate does not belong to current tenants alone, but the whole county. The devolved unit is the landlord on behalf of Mombasa residents. This right to proper housing, therefore, is not limited to Buxton tenants alone.

The level of collaboration and partnership that this project has brought forth should persist.