The Environment and Land Court has allowed the construction of a 115-unit residential estate in Kibos, Kisumu, dismissing claims by Kibos Distillers Limited that the area was a designated industrial zone.
The judgment is expected to have a significant impact on urban planning and environmental governance in the region, which has long been touted as an industrial zone.
Kibos Distillers laid claim to ownership of the land. They sued, contending that the development and construction of residential units in an industrial zone was contrary to building rules, laws, and regulations because a housing estate could not exist in the middle of an industrial zone.
However, the court ruled the company did not prove that the suit properties are in an industrial zone. The court found there was no illegality or irregularity in the process through which the Kisumu County government issued planning approval in respect of the developments.
“A declaration sought to that effect by the plaintiff (Kibos Distillers), and an order that no residential settlement shall be developed on the suit properties cannot therefore be granted,” said the court.
The dispute centred on a 56-acre parcel in Muhoroni adjacent to Kibos Distillers’ factory.
The company, which was established in 2014 and produces industrial alcohol, argued that the area was an industrial zone and that housing would expose future homeowners to noise, foul smells, and environmental hazards from its operations, including the alcohol production plant.
It argued that the county and the national government have proposed to set up a Special Economic Zone in Kibos, and should that project take off, the entire area would be an industrial zone, not ideal for residential purposes. The area has 11 other factories.
The company also claimed the Wanahewa Housing Cooperative Society fraudulently obtained approvals without environmental impact assessments (EIAs) or proper public participation.
Wanahewa, however, maintained it lawfully purchased a 14-acre portion of the land from the legitimate owner in 2017, subdivided it into 115 eighth-acre plots, and sold them to its members.
It subsequently secured approvals in 2018 from the Kisumu County government and other relevant authorities, like the Ministry of Lands and Physical Planning, for the change of use of the properties.
The cooperative accused Kibos Distillers of lacking legal standing to challenge the project, noting that the distillery itself operated on land zoned for agricultural and residential use, not industrial.
The court ruled that Kibos Distillers failed to prove the area was legally designated as an industrial zone, noting there was no evidence of gazettement.
The distillery relied on a 2016 letter from a Kisumu County official declaring the area an industrial zone. However, no formal gazettement or urban development plan was presented.
Another evidence relied on by Kibos Distillers was a July 2019 report by the County Assembly of Kisumu on the pollution of rivers by Kibos Sugar and Allied Industries Limited.
In the report, the county Committee on Water, Environment and Natural Resources said: The area around the factory at Kibos is beginning to draw many investors, and the county government should submit proposals to the county assembly to gazette it as an industrial zone with speed to encourage more investment away from the central business district and into the area, exclusive of residential settlements.
However, the court asked why the county assembly would still call for the gazettment of Kibos as an industrial zone in 2019 if it had been designated as such in 2016, when the company was setting up its distillery.
“In the absence of evidence that the suit properties are situated in an industrial zone, the Plaintiff’s objection to the planning/development approval on that ground has no basis,” ruled the court.
Another finding was that Kibos Distillers’ own land title restricted use to agricultural and residential purposes, undermining its claim of operating in an industrial zone.
The court further rejected allegations that Wanahewa fraudulently acquired the land, noting the cooperative purchased the 14-acre portion legitimately.
It also noted Kibos Distillers did not sue the other three co-owners of the original 56-acre parcel, weakening its case, and there was no evidence showing Wanahewa misrepresented ownership when applying for approvals.
Additionally, the court ruled that an Environmental Impact Assessment (EIA) was unnecessary since the project involved subdivision and change of use and not large-scale construction.
“Such a license was not required. The Plaintiff has not persuaded this court that the application for amalgamation, subdivision, and change of user of the suit properties required an EIA license,” the court held.
The court also noted that Kibos Distillers did not prove its operations would harm future residents, despite its own reports on noise and emissions.
According to Kibos Distillers, the Kenya Railways Corporation was also upgrading the railway line to Kisumu through Kibos. The Kenya Ports Authority ICT station was also situated within the industrial zone in Kibos.
The Kenya National Highway Authority was working on the Mamboleo-Muhoroni By-pass Road, which would open up the Kibos area for further industrial development and the establishment of manufacturing plants within the industrial area.
One of its rejected arguments was that the development of a residential estate within the area would result in unending litigation between the residents and the factory.
The ruling paves the way for residential growth in Kibos, aligning with Kisumu’s housing demand.
The court’s emphasis on procedural compliance reassures developers, but highlights risks for industries operating without proper zoning clearances.
