The Court of Appeal on Friday issued a landmark judgment on Nairobi's contested zoning regime, reshaping how the capital's vertical growth will be managed.
The Case: Court of Appeal at Nairobi -- Civil Appeal No. E160 of 2025: Claire Kubochi Anami & 2 Others -vs- CECM, Built Environment, Nairobi County & 21 Others.
Coram: Daniel Musinga (Presiding), Joel Ngugi and George Odunga, JJ.A
The Dispute
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Residents of Rhapta Road in Westlands challenged Nairobi City County's approvals for high-rise projects of up to 28 floors, backed by Environmental Impact Assessment (EIA) licences from the National Environment Management Authority (NEMA). They argued that, without a valid zoning plan, the approvals violated the Constitution, planning laws, and environmental rights.
In January 2025, the Environment and Land Court (ELC) partly agreed, ruling that the approvals exceeded zoning limits. It capped building heights at 16 floors using the draft 2021 Development Control Policy as a guide. The residents appealed, seeking demolition of unlawful towers, while a developer cross-appealed, insisting Rhapta Road was wrongly treated as "Zone 4" instead of "Zone 3C."
What the Court of Appeal decided:
1. Which planning rules apply?
- a) The court declared 2004 Zoning Guidelines outdated and legally defunct under the 2010 Constitution and the Physical and Land Use Planning Act (PLUPA).
- b) The three-judge appeal bench further assessed the NIUPLAN 2016 as valid, County Assembly-approved master plan that sets strategic city-wide direction, but noted it does not dictate parcel-level floor counts.
- c) The judges noted the city's 2021 Development Control Policy was developed with public input and widely applied in practice, but since it was never gazetted by the County Assembly, it lacks binding legal force. For now, it can only operate as a persuasive, interim guide.
2. How high can Rhapta Road build?
The Court corrected the ELC's error and confirmed that Rhapta Road lies in Zone 3C, not Zone 4.
- a) The bench noted Zone 3C permits up to 20 floors, subject to infrastructure capacity, site coverage, environmental safeguards, and technical constraints.
- b) The 16-floor cap imposed by the ELC was lifted for Rhapta Road, but 28-floor approvals remain unlawful.
3. Why a structural remedy?
The judges noted a dangerous planning vacuum: the 2004 rules expired, the 2021 policy remains unapproved, and Nairobi has relied on discretionary approvals. This, they said, fuels uncertainty, risks cumulative environmental harm, and erodes public trust.
To close that gap, the Court issued a structural interdict--a rare supervisory order requiring that:
- a) Nairobi City County must finalise, approve, and gazette new zoning and development control instruments within six months.
- b) An interim progress report is due in three months, with a final compliance report (including proof of public participation) filed a week after the six-month deadline, and
- c) Civic stakeholders can comment on the reports, and the Court retains limited oversight to ensure compliance.
Meanwhile, pending applications will continue under PLUPA and existing regulations, guided persuasively by the 2021 policy. Further, the bench guided that already-issued lawful approvals remain valid unless proven illegal -- a balance between protecting investments and safeguarding community rights.
Why this matters for Nairobi
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The Court underscored three constitutional imperatives often ignored in Nairobi's planning:
- a) Predictability: The need for a clear, codified, enforceable zoning rules.
- b) Transparency: The need for published standards and genuine public participation.
- c) Capacity-linked growth: The need for development tied to infrastructure and cumulative impact assessments.
The judgment ensures Nairobi's vertical growth continues -- but under lawful, transparent, and evidence-based planning, not ad hoc approvals. It also embeds intergenerational equity, warning that today's uncontrolled densification could create irreversible costs for future generations.
Bottom line: The Court of Appeal has not frozen development. Instead, it has forced Nairobi City County to finally bring its zoning laws up to date under court-supervised deadlines, allowing the rise of skyscrapers with legality, fairness, and sustainability.
