The Supreme Court of Kenya has faulted the Nairobi County government for failing to establish a legally valid planning framework to guide construction and development in the capital. This institutional lapse has fueled disputes between property developers and residents. In a judgment arising from a dispute between developers and Rhapta Road Residents Association, the apex court emphasized that development planning is a constitutional and statutory obligation that must be undertaken proactively.
The court noted 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. The 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.
The Supreme Court observed that residents are entitled to meaningful participation in the planning process, while developers deserve clear, predictable, and consistently applied requirements. The court stressed that adopting a planning framework must be followed by effective inspection, monitoring, and enforcement by county authorities and relevant regulatory agencies. 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).
The court further noted that the residents had not demonstrated ongoing environmental degradation that threatened or violated their constitutional right to a clean and healthy environment. The only constitutional violation established was Nairobi County's failure to maintain a valid planning framework. The court found that the primary failure was institutional and not attributable to individual developers.
The Supreme Court 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. The court explained that constitutional remedies are intended not only to vindicate rights but also to correct systemic failures within public institutions. The court cautioned against judicial overreach, saying courts should not take over the constitutional responsibilities of other arms of government.
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 finalize 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.
The Supreme Court justices, including Daniel Musinga, Joel Ngugi, and George Odunga, concluded that the continued reliance on the 2004 Zoning Guidelines, which have become obsolete, would give indefinite life to an instrument intended as a short-term measure and inconsistent with the devolved constitutional order. The court directed the county government to develop a valid planning framework, emphasizing that its discharge cannot be postponed until disputes arise between developers and residents.
Key points
- The Supreme Court ruled that Nairobi County government failed to establish a legally valid planning framework to guide construction and development in the capital.
- The court emphasized that development planning is a constitutional and statutory obligation that must be undertaken proactively.
- The court directed the county government to develop a valid planning framework to guide construction and development in the capital.
