The Court of Appeal has delivered an important judgment clarifying the legal status of Nairobi County’s physical planning and zoning laws and policies, while directing the county to adopt and gazette detailed zoning and development control codes within six months (available here).
Background
In August 2024, the Rhapta Road Residents Association (Association) filed a claim in the High Court, challenging approvals for high rise developments along Rhapta Road issued by the Nairobi City County. The central question was which physical planning and zoning laws lawfully governed zoning and development control in Nairobi.
The Court examined the legal status of three key laws being the 2004 Nairobi City Development Ordinances and Zones (Pre New Constitution Zoning Guidelines), the Draft 2021 Nairobi City Development Control Policy (Draft 2021 Development Control Policy) and the Nairobi Integrated Urban Development Master Plan, 2016 (NIUPLAN, 2016).
The High Court found that the Pre New Constitution Zoning Guidelines were outdated and unenforceable. It found that NIPLAN 2016 is a useful policy guide that provides for a broad spatial framework to guide urban planning and development with Nairobi City County for the period from 2014 to 2030 and was adopted by the County Assembly.
The High Court accepted the Draft 2021 Development Control Policy as the operative framework guiding current approvals, despite its lack of formal gazettement as it had been adopted in practice by the county executive and was being consistently applied.
Dissatisfied with the High Court’s position, the Association appealed to the Court of Appeal (Court) which largely upheld the High Court’s findings as set out below.
Court’s findings
On appeal, the Court held that:
- The Pre New Constitution Zoning Guidelines were issued under the pre-2010 constitutional framework and had never been enacted by the County Assembly hence they lack legal force under the 2010 Constitution and Physical and Land Use Planning Act, 2019 (PLUPA), which vests zoning authority in County Assemblies.
- As for the NIUPLAN 2016, the Court held that though it is County Assembly-approved and a legitimate county-wide master plan that sets strategic direction, spatial structure and provides broad development policy intent, it does not provide parcel-specific zoning rules. It functions as a ‘compass’ for overall guidance rather than a detailed regulatory map.
Lastly, on the Draft 2021 Development Control Policy, the Court held that though technically prepared, consulted on with stakeholders, and internally adopted by the County Executive as the operative framework, it lacked gazettement by the County Assembly.
The Court, nevertheless, accepted that, given PLUPA’s procedural safeguards, the County could continue to rely on the Draft 2021 Development Control Policy as a guiding instrument, so long as it is treated as advisory rather than binding.
PLUPA requires that all development applications be evaluated by technical committees, inter-agency referrals, infrastructure assessments, and compatibility reviews. Within this legal structure, the use of an interim policy such as the Draft 2021 Development Control Policy is not unreasonable.
The Court added that draft or interim policies can play an interpretive role to give context and consistency, but the final and binding zoning authority must emanate from a duly adopted plan or policy through the County Assembly.
Court’s reasoning
The Court noted that since the law does not permit a vacuum, the Draft 2021 Development Control Policy serves as the operative administrative guide, if it is applied consistently and transparently with the PLUPA pending gazettement by the County Assembly.
The Court emphasised that the final and binding zoning authority must emanate from a duly adopted plan or policy through the County Assembly.
This sets an important precedent as to circumstances when draft policies and laws can apply in making determinations concerning approvals required from the Government of Kenya
In conclusion, the Court ordered the Nairobi City County government to complete, adopt through the County Assembly, and gazette local physical and land use development and zoning plan(s) and/ or a Nairobi City Development Control Policy (or equivalent development control code). Pending applications will continue to be processed under the PLUPA and current regulations, will be guided transparently by the Draft 2021 Development Control Policy until new instruments are gazetted.
What this means for landowners, developers, resident associations and other stakeholders
The Court confirmed that the Pre New Constitution Zoning Guidelines no longer have legal force; NIUPLAN 2016 provides strategic, city-wide guidance but not parcel-specific zoning; and the Draft 2021 Development Control Policy serves as a practical administrative guide pending formal County Assembly gazettement.
Accordingly, landowners, developers, resident associations and other stakeholders should refer to NIUPLAN 2016 for zoning, strategic direction, and broad development parameters, and to the Draft 2021 Development Control Policy for guidance on parcel specific zoning requirements.
