Residents' association welcomes court ruling on Nairobi's high-rise buildings

A residents association in Nairobi County, the Mbaazi Residents Association in Lavington, on Monday backed a court decision ordering Governor Johnson Sakaja's administration to streamline policy gaps regulating the construction of high-rise buildings in residential areas.

Bernard Kinara, who serves as the Chairman of the Mbaazi Residents Association (MARA), lauded the decision of the Court of Appeal to order Nairobi County to close long-standing policy gaps that have left zoning regulations on Rhapta Road in disarray, as it ruled on a dispute over high-rise developments in the area.

"It's a good opportunity for the authorities to follow the law on the regulation of high-rise buildings in residential areas. This court outcome should act as a guide in ensuring that people are involved in building plans, especially in areas where there are residential buildings," said Kinara.

Kinara explained that they agreed with the idea of the county government establishing a valid and updated zoning framework before granting approvals for projects of significant magnitude.

"The reason why we're backing this ruling is because we have been experiencing unregulated development within the city's suburbs. In most instances, there has been disagreement over the number of floors in a building and matters such as accessibility and even the existence of social amenities," said Kinara.

The court orders that came out on Friday last week followed a challenge by residents against the approval of a 26-storey apartment block, which they argued violated the Constitution and planning laws in the absence of clear zoning policies.

Kinara's lobby advocates for residents in the Lavington area, particularly on issues of zoning and high-density developments. He and his association have been involved in legal challenges against large construction projects in the area, citing potential violations of zoning regulations and environmental rights.

The association has taken legal steps, including filing court cases and seeking injunctions, to challenge the construction of high-rise buildings that they believe are inconsistent with the low-density residential nature of the area.

The association's arguments often centre on the potential negative environmental impacts of such developments and the violation of residents' rights to a clean environment and proper public participation.

In this case, the developer and public authorities had defended the project, insisting it was in line with current planning standards.

In January this year, the Environment and Land Court (ELC) capped developments along Rhapta Road at 16 floors, relying on the draft 2021 Nairobi City Development Control Policy.

Residents appealed, seeking cancellation of approvals and demolition of structures, while the developer filed a cross-appeal, insisting that Rhapta Road falls within Zone 3C, which permits taller buildings.

In a unanimous judgment delivered by Justices Daniel Musinga, Joel Ngugi, and George Odunga, the Court of Appeal clarified that the operative zoning framework remains the 2004 Nairobi City Development Ordinances and Zoning Regulations, issued under the repealed Physical Planning Act but preserved under the Physical and Land Use Planning Act (PLUPA).

The judges further held that the Nairobi Integrated Urban Development Master Plan (NIUPLAN) 2016 is only a strategic guide and cannot provide parcel-specific zoning rules.

They also noted that the Nairobi City County Development Control Policy 2031, though widely consulted upon, lacks binding effect until formally adopted by the County Assembly.

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On classification, the Court partly allowed the developer's cross-appeal, finding that official records consistently place Rhapta Road in Zone 3C, which allows buildings of up to 20 storeys, subject to environmental, infrastructural, and technical constraints.

The ELC was faulted for relying on draft policies rather than legally operative instruments.

More significantly, the Court issued a structural interdict, directing Nairobi County to finalise and adopt binding planning and development control instruments within six months.

The County must file an interim report at three months and a final compliance report, subject to public participation, with the Court retaining limited supervisory jurisdiction.