As cities expand and land values rise, tension between private development interests and public planning regulations continues to intensify. A recent decision by the Court of Appeal in Civil Appeal No. E160 of 2025: Claire Kubochi Anami & 2 others vs CEC, Built Environment, Nairobi County & 21 others (“the dispute”) offers a compelling lens through which to examine the legal and structural frameworks governing zoning and planning in Nairobi and by extension, urban Kenya.
Background
At the centre of the dispute was a challenge by residents of Rhapta Road to a series of high-rise development approvals, some permitting buildings of up to 28 floors. These approvals had been granted by Nairobi City County, accompanied by Environmental Impact Assessment (EIA) licences issued by the National Environment Management Authority (NEMA). The residents argued that these approvals breached the Constitution of Kenya and planning statutes, posing a threat to their environmental rights. In contrast, developers and public authorities maintained that the approvals followed lawful procedures consistent with a city transitioning to modern planning instruments.
Environment and Land Court Decision
In determining the dispute, originally filed at the Environment and Land Court (ELC), the ELC found that the approvals, particularly with regard to the number of floors were misaligned with the operative zoning regime. As an interim measure, it imposed a 16 floor cap and referred to the (Draft) 2021 Nairobi City Development Control Policy as an interpretive guide. The residents filed an appeal at the Court of Appeal seeking cancellation of the approvals. Developers filed a cross-appeal, arguing for the proper zoning of Rhapta Road to allow for taller buildings.
Court of Appeal Decision
The Court of Appeal acknowledged that Nairobi suffers from a structural governance gap due to outdated zoning plans and planning instruments. However, it ruled that approvals already issued and acted upon remain legally valid provided no illegality occurred in their issuance. Crucially, the Court of Appeal clarified that buildings whose principal access is on Rhapta Road should be assessed under Zone 3C, which permits a maximum height of 20 floors. This represents a clear legal ceiling for future developments in the area under the current framework.
Orders and Forward Path
Nairobi City County was directed to complete and gazette updated zoning and development control instruments within six months. In the interim, pending development applications will be evaluated under the Physical Land Use and Planning Act, 2019, the Development Control Policy, and any interim administrative policies provided these are applied consistently, transparently, and remain subject to the final instruments to be gazetted.
Implications for Urban Development
Structural planning is not merely about architecture. It is also about aligning development with law, transparency, and capacity-linked growth. The Court of Appeal’s decision sends a clear message that: Nairobi’s skyline may continue to rise, but development must be rooted in law, evidence, capacity, and fairness.
For developers, the key takeaway is that new and binding zoning policies are imminent. Active participation in upcoming public engagement processes will be essential to influencing Nairobi’s evolving urban planning framework.
Key Takeaways
• The Court upheld existing high-rise approvals where no illegality was found;
• Rhapta Road developments now fall under Zone 3C, capped at 20 floors;
• Nairobi County must gazette new zoning and planning instruments within six months;
• Pending applications will be reviewed under current laws and policies, subject to future updates; and
• Developers should prepare for new zoning rules and engage in the public participation process.
This alert serves the purpose of general guidance and is not intended to constitute specific legal advice. For tailored advice, please contact our Partner at Nancy.Ndegwa@CMS-DI.com.
*Contributors
•Peter Munyao – Associate
•Cecilia Waruiru – Trainee Advocate
•Rehema Mwaka – Trainee Advocate
