Landmark Sectional Property Ruling – Developers Take Note
Rehman v Luhar (Environment & Land
Case 10 of 2016) [2022] KEELC 13714 (KLR)
This pivotal ruling underscores heightened judicial scrutiny on compliance with
Kenya’s Sectional Properties Act and land use laws.
Case Summary
Mr. Khalid Hussein Rehman purchased
three apartments in a nine-unit development in Nyali, Mombasa. Mr. Ahmed Jan
Mohamed Suleiman Luhar, the developer and owner of two units in Block B,
constructed an additional rooftop apartment without obtaining the necessary
regulatory approvals or the consent of other unit owners.
The construction lacked valid licenses
from NEMA and NCA, and county approval was obtained only after works had
commenced. The Defendant also failed to establish a management corporation as
required by law.
Key
Legal Findings
-
Sectional Properties Act Applied: Despite the
property being under the repealed Registration of Titles Act, the court
applied the 1987 and 2020 Sectional Properties Acts to protect purchasers
and regulate shared property. -
Breach of Disclosure: The Defendant violated
Section 43 by failing to provide sectional plans. The rooftop unit was not
part of the original approved development. -
Unapproved Construction: Works
commenced without valid approvals from NEMA and NCA. -
Lack of Management Corporation: No body corporate
had been created to manage the common property. -
Infringement on Common Areas: The rooftop
unit altered the approved design and encroached on common property rights.
Final Orders by the
Court
In line with the objectives of the
Sectional Properties Act and related provisions of the Land Act, 2012—including
Sections 38 and 39, which empower courts to enforce land use conditions and
uphold the sanctity of registered rights—the Environment and Land Court issued
the following orders:
- The
rooftop unit was declared unlawful. - A
permanent injunction was
issued to restrain the Defendant from undertaking any further unauthorized
developments. - The
Defendant was ordered to demolish
the illegal rooftop structure and ensure full compliance with the
statutory framework, including relevant environmental and planning
approvals.
These orders reinforce the obligation
of developers to adhere strictly to approved development plans, legal
procedures, and statutory requirements.
Buyer
Protections under the Sectional Properties Act
-
Mandatory Disclosure: Buyers must be
provided with sectional plans, titles, by-laws, and details of any
charges. -
Title Clarity: Each buyer receives a
certificate of title or lease inclusive of their proportional interest in
common areas. -
Implied Easements: Owners enjoy statutory rights
for access, services, and support. -
By-Laws and Governance: Enforceable
rules manage unit and common area usage. -
Information Rights: Buyers can
request financial and management records. -
Statutory Offences: Non-compliance
attracts penalties including fines and imprisonment.
These protections improve legal
certainty, buyer confidence, and development accountability.
Marketing
Integrity & Legal Exposure
Developers and estate agents must
ensure their marketing materials are factual and not misleading. Misstatements
regarding unit size, layout, amenities, ownership, or approvals may give rise
to civil liability. Misrepresentation in real estate occurs in three forms:
-
Innocent
Misrepresentation: A false statement made unknowingly. It may still
allow the buyer to cancel the contract. -
Negligent
Misrepresentation: A carelessly made false statement without reasonable
verification. It may attract claims for damages. -
Fraudulent
Misrepresentation: A knowingly false or recklessly indifferent statement
made to induce purchase. It may result in significant financial,
reputational, or even criminal consequences.
Any inconsistencies between marketing
claims and actual legal or structural realities of a development may expose
professionals to litigation, regulatory sanctions, or loss of public trust.
Key Takeaways for
Developers & Owners
- Establish
management corporations as required. - Provide
accurate and full disclosure to all unit purchasers. - Refrain
from unauthorized variations to approved development plans. - Maintain
integrity in all marketing and promotional materials.
Misleading information—whether
innocent, negligent, or fraudulent—can trigger serious legal and commercial
repercussions.
For
legal advisory on sectional titles, real estate compliance, or dispute
resolution, please contact:
CM
Advocates LLP
Head
Office Nairobi
I&M Bank House, 7th Floor, 2nd Ngong Avenue
T: +254 20 2210978 / +254 716 209673
E: law@cmadvocates.com or cmaina@cmadvocates.com
Mombasa
Office
Links Plaza, 4th Floor, Links Road, Nyali
T: +254 41 447 0758 / +254 41 447 0548
C: +254 791 649913
E: mombasaoffice@cmadvocates.com