- Supreme Court questions Nairobi County’s authority to approve high-rise buildings under an unapproved planning policy.
- Judges decline to order demolition of disputed developments along Rhapta Road.
- Dispute returns to the Court of Appeal for further examination of Nairobi’s 2026 development control policy.
The Supreme Court has faulted Nairobi City County for approving high-rise buildings using an unapproved development policy. The ruling raises fresh questions about the legality of construction permits issued under the disputed planning framework.
In a landmark judgement delivered on Friday, October 30, 2026, a five-judge bench led by Chief Justice Martha Koome ruled that the county government lacked the legal authority to rely on the Nairobi City Development Control Policy 2021. The reason was that the policy had never received approval from the Nairobi County Assembly.
The decision followed an appeal by the Rhapta Road Residents Association, which challenged the approval of high-rise developments measuring between 17 and 22 floors in the Muthangari area of Westlands.
The residents maintained that the developments violated existing zoning regulations, which they argued restricted buildings in the neighbourhood to four floors. They also raised concerns about the capacity of existing infrastructure to support the rapidly increasing population, citing pressure on water supplies, sewerage systems, roads and other essential public services.
In its determination, the Supreme Court established that Nairobi County had continued processing and approving development applications using the 2021 policy despite failing to secure the necessary legislative approval. The judges observed that the absence of a legally approved development plan undermined the county’s ability to determine development applications within a valid planning framework.
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“The absence of the County Assembly approved plan suspended the 2nd respondent’s ability to determine development applications on their merits,” the judges ruled.
The Supreme Court also faulted the Environment and Land Court and the Court of Appeal for relying on the same disputed policy when determining permissible building heights. The Environment and Land Court had initially restricted developments to 16 floors, before the Court of Appeal subsequently raised the limit to 20 floors.
However, the Supreme Court clarified that decisions on zoning classifications and permissible building heights must be made by the relevant planning authorities, guided by technical assessments. Such assessments should consider population density, infrastructure capacity, environmental implications and other relevant development factors rather than relying on an unapproved policy.
Despite finding fault with the county’s planning framework, the Supreme Court declined to order the demolition of the disputed buildings. The judges held that the residents had not presented sufficient evidence demonstrating that the developments had caused environmental degradation or violated their constitutional rights.
The court described demolition as an exceptional and highly intrusive remedy that should not be imposed without compelling justification.
“Demolition is an exceptional and most intrusive remedy,” the judges stated.
The court explained that demolition orders should generally be reserved for cases involving established illegality, threats to human life or developments undertaken in deliberate defiance of the law. The decision therefore drew a distinction between the county’s failure to follow the legally required planning procedures and the separate question of whether the completed or ongoing developments should be demolished.
The Supreme Court also took note of Nairobi County’s adoption of the Nairobi City County Development Control Policy 2026 on June 18, followed by its gazettement on June 19. However, the judges declined to determine whether the new policy met all legal requirements because its validity and legal implications had not been sufficiently argued before them.
Consequently, the court partially allowed the residents’ appeal and referred the dispute back to the Court of Appeal to examine whether the 2026 policy satisfies the outstanding planning requirements. The question of the legal adequacy of the new framework will therefore remain central to the next stage of the dispute.
By Hillary Muhalya
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