On 3rd March 2022, the High Court in Constitutional Petition No. E249 of 2020 issued orders that affirmed the human rights to clean water and sanitation and the Children’s Right to leisure and recreation which developers and contractors are required to implement on the properties they are putting up for sale.

The Petition.

  • The Petitioners

The Petitioners, who are residents of Phenom Park Estate within Langata Sub-County filed a suit on the basis that the developer failed to provide proper sanitation as well as a play area for their children as was indicated in the marketing brochure for the properties.

Further the Petitioners intimated that the 2nd interested Party, National Environmental Management Authority (NEMA) were erroneous and inaccurate in their report since after testing the borehole water, it was found that there was high concentration of fluorides, bicarbonates and sodium. With the hazardous substances found in the water, it put the children’s health at risk. Article 43(1) (c) of the Constitution provides that every individual has a right to clean and safe water. Thus they argued that the developer was in breach of the aforementioned right.

Article 53(2) of the constitution provides;

“that a Child’s interests are of paramount importance in every matter concerning the child.”

  In an article published by UNICEF, a child’s right to play and recreate opens up a child to creative and imaginative thinking.  The Children’s Act, Section 7, goes on to provide that children are entitled to leisure, play and participation in cultural and artistic activities. It was thus the petitioner’s argument that by the developers not providing a safe and adequate play area for the children, they were forced to play on pavements and car parking areas which put them at risk of being run over by moving vehicles.  

  • The Respondents

The Respondents, who are a property developer known as Chigwell Holdings Limited, argued that they performed all their obligations under the respective agreements of sale. They further argued that the petitioners had no standing seeking an injunction which barred them from continuing with construction of Phase 4 of the project. They then stated that there were constitutional breaches by the petitioners.

Article 40(1) of the Constitution provides:

“every person has a right, either individually or in association with others, to acquire and own property any description and in any part of Kenya.”

They argued that by them being barred from continuing construction on phase 4, it was breaching the rights of prospective purchasers who had committed/paid deposits.

In regard to the playground area for the children, the developers argued that demanding for an additional playing area by the petitioners that was no indicated on the approved architectural plans and which they inspected had no contractual basis and would be tantamount to rewriting the agreement between the parties.

The Decision

The Presiding Judge, Justice James Makau, having heard the parties found that the issues raised in the petition were not frivolous as the same raised weighty constitutional issues warranting further investigation by the court.

The Court stated that the petitioners had demonstrated that the children’s rights to human dignity had indeed been violated. A report done by the Deputy Registrar of the court confirmed that indeed there were no playgrounds in the area hence leaving the children to compete with motor vehicles in the car parking bays and, on the road, hence endangering their lives. Putting the children at such a risk was obviously not in the best interest of the child hence a violation of Article 53(2) of the Constitution and Section 17 of the Children’s Act.

On the issue on the right to clean and safe water in adequate quantities, the petitioners adduced evidence indicating that the borehole water was not safe for human consumption. Thus the violation on article 43 (1) (d) of the Constitution was clearly cited.

The Implications of the Decision.

The judgement will have implications especially in construction of new upcoming developments. Owing to the growing population, property developers have seen the need to provide and improve on the facilities they offer prospecting families.  They have seen a great need to provide recreational facilities for children within such complexes. Even if they are not able to achieve the same within, most developers are seen to engage other properties and designate an area for such activities within the neighborhood.

In regard to the provision of adequate and safe water, the growing demand for housing has led to the construction of boreholes which are now many in number and are thus requiring people to go deeper in search for the water. It is a requirement for borehole installations to include water treatment that seek to treat the water coming from the borehole. Upon inspection by NEMA, they are required to ensure that the said water treatment is being done on the borehole and that proper and sanitary water is reaching families.

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