Nairobi County government has been faulted over the failure to establish a legally valid planning framework to guide construction and development in the capital, with the institutional lapse fuelling disputes between property developers and residents.
In a judgment arising from a dispute between developers and Rhapta Road Residents Association, the apex court said county governments could no longer afford to neglect their constitutional and statutory responsibility to regulate urban development through approved physical and land use plans.
The judges emphasised that development planning was a constitutional and statutory obligation that must be undertaken proactively rather than waiting for disputes to arise.
"Its discharge cannot be postponed until disputes arise between developers and residents, or left to courts to resolve through successive challenges to individual projects," the court said.
The Supreme Court in Nairobi.
Photo credit: File | Nation Media Group
The Supreme Court observed that cities and urban areas must develop within a lawful, coherent and publicly accessible planning framework that provides certainty to residents, investors and public authorities.
It added that planning frameworks must be regularly reviewed to accommodate population growth, housing needs and changing urban conditions.
However, any changes allowing greater density or increased building heights must be undertaken transparently and in accordance with the law.
Residents, the court said, were entitled to meaningful participation in the planning process, while developers deserved clear, predictable and consistently applied requirements.
"The central plank throughout this judgment is that the law demands only developments which are in conformity with the relevant approved plans," the judges said.
The court further stressed that adopting a planning framework must be followed by effective inspection, monitoring and enforcement by county authorities and relevant regulatory agencies.
It warned that county officials must remain aware that their failure to discharge these responsibilities could attract personal criminal liability under the Physical and Land Use Planning Act (PLUPA).
However, the Supreme Court said the residents had not demonstrated ongoing environmental degradation that threatened or violated their constitutional right to a clean and healthy environment.
It found that the only constitutional violation established was Nairobi County's failure to maintain a valid planning framework.
"The primary failure was institutional and not attributable to individual developers. An order of demolition, in our considered view, therefore may not address this institutional failure," the court said.
"No jurisdiction nor competence"
The judges added that the appropriate remedy was to compel the county government to comply with the Constitution and planning laws rather than order the demolition of buildings.
They said the trial court and the appellate court did not have the jurisdiction or competence to determine how many floors of the buildings should be demolished.
The Supreme Court explained that constitutional remedies were intended not only to vindicate rights but also to correct systemic failures within public institutions.
It noted that courts could issue structural orders requiring responsible public bodies to develop constitutionally compliant solutions and report on their implementation, particularly where violations were continuing.
However, it cautioned against judicial overreach, saying courts should not take over the constitutional responsibilities of other arms of government.
Under Article 185(1) of the Constitution, legislative authority at the county level is vested in the County Assembly, which has powers to enact laws necessary for the effective performance of county functions.
The court said judicial intervention in law-making should be limited, except where a public institution demonstrates persistent indifference, unwillingness or sustained failure to discharge its constitutional obligations.
The judges noted that Nairobi County's 2021 Development Control Policy had remained unapproved for nearly five years, justifying the Court of Appeal's decision to direct the County Assembly to finalise the policy within six months.
The policy had reached the governor's desk but was never submitted to the County Assembly for approval, as required by law.
Section 36 of PLUPA requires county governments to prepare county physical and land use development plans every 10 years. Section 46 outlines their purpose, including zoning, urban renewal, infrastructure coordination, regulation of land use and providing guidelines for building developments.
Nairobi County Governor Johnson Sakaja during an interview at his office in Riverside, Nairobi.
Photo credit: Bonface Bogita | NATION Media Group
The Supreme Court noted that the process requires the county executive committee to submit the plan to the governor, who must then present it to the County Assembly for approval.
It said the 2021 policy did not acquire the formal legal status required under Article 185 of the Constitution and Section 45 of PLUPA because it was never approved by the County Assembly.
Last year, the Court of Appeal had given the county government six months to develop the framework noting that the 2004 Zoning Guidelines, which have continued to influence development decisions in Nairobi despite becoming obsolete.
The guidelines were developed under the repealed Physical Planning Act, before the promulgation of the 2010 Constitution and enactment of PLUPA in 2019.
Justices Daniel Musinga, Joel Ngugi and George Odunga said continued reliance on the guidelines as binding law two decades later would give indefinite life to an instrument intended as a short-term measure and inconsistent with the devolved constitutional order.
The judges also considered the Nairobi Integrated Urban Development Master Plan (NIUPLAN), 2016, which was approved by the County Assembly.
Although valid, the master plan does not provide parcel-specific zoning rules or determine the number of floors permitted on individual properties, as contemplated under Section 46 of PLUPA.
"However, absent formal County Assembly approval and gazettement, it lacks binding legal effect. It can inform and guide decisions persuasively pending formal adoption, but cannot operate as law. It can only act, for a short time, as an interpretive policy guide," the judges said.
The dispute arose after the residents' association challenged development approvals granted to approximately 15 developers along Rhapta Road.
The residents argued that the approvals had been issued in a policy vacuum or contrary to existing zoning restrictions and planning instruments.
They complained that multi-storey buildings, some rising to 28 floors, were being constructed in an area previously designated for low-density residential development.
Under the 2004 Zoning Guidelines, Rhapta Road fell within Zone 4, which permitted buildings of up to four floors.
The association argued that approvals for buildings ranging between 20 and 28 floors disregarded the zoning guidelines and the development principles outlined in NIUPLAN 2016.
It warned that uncontrolled construction was contributing to congestion, pressure on sewerage and road networks, water shortages, drainage challenges, air and noise pollution, and the deterioration of the neighbourhood's residential character.
The developers, however, maintained that the 2004 guidelines were outdated and inconsistent with the Constitution and PLUPA.
They argued that Nairobi County had progressively adopted the 2021 Development Control Policy to accommodate demographic changes, rapid urbanisation and the need for vertical housing.
They further maintained that the approvals followed technical assessments, site visits and public participation requirements, accusing the residents of opposing urban transformation.
The National Environment Management Authority (Nema), which was also a party to the dispute, told the court that all the developers had submitted environmental impact assessment (EIA) reports, which were reviewed and approved before licences were issued.
On environmental concerns, the Supreme Court upheld the concurrent findings of the two lower courts that the developers had complied with the EIA requirements under Section 58 of the Environmental Management and Coordination Act (EMCA).
The judges said the residents had failed to prove that the environmental licences were unlawfully or procedurally issued or that the developments had violated their right to a clean and healthy environment.
The court nevertheless emphasised the principle of intergenerational equity, saying sustainable development must protect the interests of present and future generations.
"Nairobi's urban form will shape the life chances of Nairobians yet unborn. Uncoordinated densification clogging narrow rights-of-way, overwhelming sewers and starving public open space risks path dependence that will be costly to reverse," the judges said.
They added that planned compact growth, integrating transport, utilities, mixed-use developments and adequate public spaces, could deliver affordability, efficiency and liveability.
The court took notice that Nairobi County had subsequently passed the Nairobi City County Development Control Policy, 2026, on June 18, 2026, and published it in the Kenya Gazette.
However, it declined to determine the policy's validity, substantive provisions or legal effect, saying these issues had not been canvassed before the lower courts or during the appeal.
The judges partially allowed the appeal, setting aside the Court of Appeal's reliance on the 2021 policy as the basis for development approvals in the Rhapta Road area.
They remitted the matter to the Court of Appeal to formally receive and consider the 2026 policy and determine its effect, if any, on the implementation of the structural orders issued in September 2025.
"Our decision herein affirms that urban development must be lawful, participatory, and sustainable," the court said.
