The Supreme Court has faulted Nairobi City County for relying on an unapproved development policy to determine building heights and approve high-rise developments, directing the county to review a disputed housing project under the current planning framework.
In a ruling delivered on Friday, October 30, a five-judge bench led by Chief Justice Martha Koome found that Nairobi County had relied on a planning policy that had not completed the legal process required to make it binding.
At the centre of the dispute was a proposed development of three 16-storey apartment blocks comprising 512 residential units on a one-acre plot along Mbaazi Avenue in the Thompson area of Nairobi.
Residents opposed the project over concerns about building heights, population density and pressure on water supply, drainage, sewerage systems and other public infrastructure.
Why the Supreme Court Faulted Nairobi County
According to the judges, the lower courts relied on the 2021 development policy to determine permissible building heights, even though the document had not completed the legal approval process.
Also Read: Sakaja Sends Warning to Nairobi Developers
For a county development policy to have legal force, the County Assembly must approve it and it must undergo the required gazettement process.
“The policy, being in a draft form, failed to meet the requirements of the Physical and Land Use Planning Act and could not form the basis of area zoning or building height regulations,” the judges stated.
Although the 2021 policy had been used as a planning guide, it could not, on its own, provide the legal basis for granting development rights.
The Supreme Court also faulted the lower courts for relying on the document without giving the parties an adequate opportunity to address its legal status.
Planning authorities, the judges emphasised, decide zoning classifications and permissible building heights, which should be informed by technical assessments of infrastructure, population density, and other development considerations.
What Nairobi County Has Been Ordered to Do
In its decision, the Supreme Court partially allowed the appeal and directed Nairobi County to conduct a fresh review of the proposed Mbaazi Avenue development under the Nairobi City County Physical Development Plan 2026.
The judges noted that the Nairobi City County Development Control Policy 2023, now known as the 2026 policy, received County Assembly approval on June 16, 2026.
Nairobi County was considered better placed to determine whether the proposed development complied with the current planning framework.
Also Read: Court Blocks Plan to Give Teachers, Police Priority in Affordable Housing
“We also find that the 3rd respondent is properly placed to undertake a fresh review of the project in line with the now-enacted City County Physical Development Plan 2026,” the judges ruled.
Under the fresh assessment, the county will examine the project against the applicable zoning and development requirements rather than relying on the unapproved 2021 policy.
Supreme Court Declines to Cancel Project Approvals
Despite finding fault with the reliance on the 2021 policy, the Supreme Court declined to cancel the project’s other approvals.
Among the approvals already obtained were a change-of-use approval, an environmental impact assessment licence and other technical clearances.
On environmental concerns, the judges found that no credible threat of serious or irreversible damage had been demonstrated to justify cancelling the approvals.
The court consequently upheld the other parts of the Court of Appeal’s judgment while setting aside findings that relied on the 2021 development policy.
Follow our WhatsApp Channel and X Account for real-time news updates and subscribe to our YouTube Channel for in-depth interviews.
