The Court of Appeal has delivered a far-reaching judgment on Nairobi’s zoning and planning regime, directing the County Government to finalise and gazette a lawful development control policy within six months.
The appeal arose from a petition filed by the Rhapta Road Residents Association, which challenged approvals granted for high-rise towers some rising to 28 floors along Rhapta Road. The residents argued that the approvals violated zoning rules, ignored existing plans such as the 2004 Zoning Guidelines and NIUPLAN 2016, and breached their constitutional right to a clean and healthy environment.
While the Environment and Land Court (ELC) had earlier capped permissible height at 16 floors, the appellate judges Musinga (P), Joel Ngugi and Odunga, JJ.A. found that the trial court erred in classifying Rhapta Road under Zone 4. The Court instead held that, according to the 2021 Development Control Policy, Rhapta Road falls under Zone 3C, allowing developments of up to 20 floors. Consequently, the Court adjusted the interim cap to twenty floors pending County Assembly action .
On the question of jurisdiction, the Court rejected arguments by developers and regulators that the matter should have been pursued before specialised tribunals such as the National Environment Tribunal. It held that the petition raised systemic constitutional failures in Nairobi’s planning framework, which could not be remedied by statutory bodies.
Crucially, the Court fashioned a structural interdict a rare form of supervisory order compelling Nairobi City County to gazette new zoning and development control plans within six months. The County is required to file an interim progress report in three months and a final compliance report annexing the gazetted instruments within the set timeline .
The judgment underscores the constitutional imperatives of sustainable urban growth, public participation, and environmental protection. It also places Nairobi’s planning authorities under strict judicial supervision to end what the Court described as a “twilight zone of governance” in which outdated ordinances and unapproved policies have facilitated haphazard approvals.
The decision is expected to have far-reaching implications not only for Rhapta Road but also for other high-density corridors in Nairobi where vertical development continues to spark clashes between residents, developers, and regulators.
