Court halts Rhapta Road high-rise approvals pending new zoning framework
The court directed the county government to establish a valid and updated zoning framework before granting approvals for projects of such magnitude.
The Court of Appeal has ordered 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.
The Court directed the county government to establish a valid and updated zoning framework before granting approvals for projects of such magnitude.
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The orders 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.
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zoning framework remains the 2004 Nairobi City Development Ordinances and Zoning Regulations, issued under the repealed Physical Planning Act but preserved under the Physical and Land Use Planning Act (PLUPA).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.
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.
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