The Supreme Court faulted Nairobi County’s reliance on an unapproved development policy.
Judges reject the county’s reliance on a draft planning policy but decline demolition orders and return the dispute to the Court of Appeal.
The Supreme Court has faulted Nairobi high-rise approvals that relied on a development policy lacking County Assembly approval. It ruled that Nairobi City County had no legal authority to use the document when granting construction permits.
Chief Justice Martha Koome led the five-judge bench, which delivered its judgment on Friday, October 30. The dispute centred on the Nairobi City Development Control Policy 2021.
The Rhapta Road Residents Association challenged approvals for buildings ranging from 17 to 22 floors in Muthangari, Westlands. Residents argued that existing zoning rules limited buildings in the area to four floors. They also warned that the projects would strain water supplies, sewerage systems, roads and other public infrastructure.
Why the court faulted Nairobi high-rise approvals
The judges found that the county continued using the draft 2021 policy without securing the required legislative approval. As a result, it lacked a legally valid planning framework for assessing development applications on their merits.
The Supreme Court also faulted the Environment and Land Court and the Court of Appeal for relying on that policy. The former had set a 16-floor limit, while the appellate court later increased it to 20 floors.
However, the judges said planning authorities hold the mandate to determine zoning classifications and permissible building heights. Those decisions require technical assessments of infrastructure, population density and other development considerations, rather than court-imposed floor limits.
No demolition order as appeal returns to court
Despite its findings on the policy, the Supreme Court declined to order demolition of the disputed buildings. It found that residents had not supplied sufficient evidence of environmental degradation or violations of their constitutional rights.
The judges described demolition as an exceptional and highly intrusive remedy. They said courts should generally reserve it for proven illegality, threats to life or construction that defies the law.
Meanwhile, the court acknowledged the county’s adoption of the Nairobi City County Development Control Policy 2026 on June 18. The county gazetted it the following day. However, the judges did not assess its validity or legal effect because those questions had not come before them for argument.
The Supreme Court therefore partly allowed the residents’ appeal and returned the matter to the Court of Appeal. That court will assess whether the 2026 policy meets the outstanding planning requirements.
