Supreme Court faults Nairobi County over high-rise approvals under unapproved 2021 policy
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Kenya's Supreme Court has ruled that Nairobi City County had no legal authority to approve high-rise developments using its unapproved 2021 development control policy, but declined to order the demolition of the disputed buildings.
Kenya's Supreme Court has faulted Nairobi City County for approving high-rise buildings using an unapproved development policy. In a judgment delivered on Friday, October 30, a five-judge bench led by Chief Justice Martha Koome found that the county had unlawfully relied on the Nairobi City Development Control Policy 2021, which had not been approved by the Nairobi County Assembly.
The ruling followed a petition by the Rhapta Road Residents Association challenging the approval of developments of between 17 and 22 floors in the Muthangari area of Westlands. The residents argued the projects violated zoning rules which they maintained restricted buildings in the area to four floors, and that they would strain water supplies, sewerage systems, roads and other public infrastructure.
The court found that the county had continued to use the draft 2021 policy to approve developments despite failing to secure legislative approval, leaving the city without a legally valid planning framework. "The absence of the County Assembly approved plan suspended the 2nd respondent's ability to determine development applications on their merits," the judges ruled.
The court also faulted the Environment and Land Court and the Court of Appeal for relying on the same unapproved policy to set building heights, noting that the former restricted developments to 16 floors before the latter raised the limit to 20. It held that zoning classifications and permissible building heights fall within the mandate of planning authorities and require technical assessments of infrastructure, population density and other considerations.
The judges declined to order demolition, finding that the residents had not provided sufficient evidence that the developments caused environmental degradation or violated their constitutional rights. "Demolition is an exceptional and most intrusive remedy," the court said. It noted that the county adopted the Nairobi City County Development Control Policy 2026 on June 18 and gazetted it a day later, but did not rule on its validity because the issue was not argued, and referred the matter back to the Court of Appeal to assess whether the 2026 policy meets the outstanding planning requirements.
The judgment comes as rescue operations continue in Nairobi's Eastleigh area, where an 18-floor building collapsed, renewing concerns about high-rise safety in the city.