The Supreme Court has ruled that Nairobi City County acted unlawfully by approving high-rise developments under an unapproved planning policy, finding that the county lacked the legal authority to use the document when issuing construction permits.
In a judgment delivered on Friday, October 30, a five-judge bench led by Chief Justice Martha Koome faulted the county government for relying on the Nairobi City Development Control Policy 2021, which had never received approval from the Nairobi County Assembly.
The case arose from a petition by the Rhapta Road Residents Association, which challenged approvals granted for high-rise buildings ranging between 17 and 22 floors in Muthangari, Westlands.
The residents argued that the developments contravened existing zoning regulations, which they said limited buildings in the neighbourhood to four floors.
They also warned that the projects could place additional pressure on water supply, sewerage systems, roads and other essential public infrastructure.
In its ruling, the Supreme Court established that Nairobi County had continued issuing development approvals using the draft 2021 policy despite failing to obtain the required legislative endorsement. This effectively left the city without a legally approved planning framework to guide development decisions.
"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 apex court also criticised the Environment and Land Court and the Court of Appeal for relying on the same unapproved policy when determining permissible building heights.
The Environment and Land Court had initially limited the developments to 16 floors, before the Court of Appeal subsequently raised the threshold to 20 floors.
However, the Supreme Court explained that decisions on zoning classifications and permissible building heights fall under the responsibility of planning authorities. Such determinations, it said, must be informed by technical assessments covering infrastructure capacity, population density and other critical development considerations.
Despite finding fault with the county's planning framework, the judges declined to order the demolition of the disputed buildings.
The court determined that the residents had not presented sufficient evidence demonstrating that the developments had caused environmental damage or violated their constitutional rights.
"Demolition is an exceptional and most intrusive remedy," the court stated, adding that the measure should generally be reserved for circumstances involving established illegality, threats to human life or construction undertaken in deliberate defiance of the law.
The Supreme Court also took note of Nairobi County's adoption of the Nairobi City County Development Control Policy 2026 on June 18, which was subsequently gazetted on June 19.
However, the judges stopped short of determining whether the new policy was legally valid or had met all the necessary planning requirements, noting that the matter had not been presented for determination during the proceedings.
Consequently, the Supreme Court partially allowed the residents' appeal and referred the dispute back to the Court of Appeal to examine whether the 2026 policy addresses the outstanding legal and planning requirements.
The decision comes at a time when Nairobi's high-rise construction sector is facing renewed scrutiny following the collapse of an 18-storey building in Eastleigh, where rescue operations have been underway.
The latest ruling is likely to intensify questions about Nairobi's building approval procedures, zoning enforcement and the legal frameworks governing the rapid expansion of high-rise developments across the capital.
