Kiprotich

🚨 How tall can Nairobi build, and who gets to decide? The Supreme Court has now answered, and its answer is that for years nobody was deciding it lawfully at all. These are two companion judgments delivered together on 30 October 2026: Claire Kubochi Anami & Others v County Executive Committee Member for Built Environment and Urban Planning & Others, Supreme Court Petition No. E044 of 2025, and Millenium Gardens Management Limited v Metricon Home Nairobi Company Limited & Others, Supreme Court Petition No. E047 of 2025. Here is what they mean. Both cases began with residents objecting to high-rise towers next door. On Rhapta Road in Kilimani, the County and the environmental regulator had approved buildings of 17 to 22 floors in an area residents said was zoned for four. In the Thompson area, a one-acre plot was cleared for three 16-storey blocks holding 512 units beside a low-rise residential property. In both, the approvals had been processed under the Nairobi City Development Control Policy of 2021. The Supreme Court found the problem beneath all of it. That 2021 policy was never law. It was approved by the governor but never passed by the County Assembly, and never enacted and gazetted as the Physical and Land Use Planning Act requires. It remained a draft. And a draft cannot be the legal basis for zoning an area or setting a building's height. The consequences run deep. Where a county has no validly approved plan, the Court held, its power to decide development applications on their merits is suspended. A public authority cannot widen its own discretion by failing to put in place the very framework the law requires of it. The courts below had leaned on the idea that the law does not tolerate a vacuum, and used the draft, and in one instance even Google Maps, to fix zones and heights. The Supreme Court set that approach aside. The absence of a law is not a source of power, and zoning is not a matter of impressionistic geography. But the Court drew an equally firm second line. Courts review the legality of planning. They do not plan. A court can compel a county to zone, but it cannot zone, set height caps or order demolitions in the county's place, least of all where the technical facts are contested. The developers here had obtained every approval in good faith, and the only proven breach was institutional, the County's own failure to legislate. So the approvals were upheld, demolition was declined as a last resort that would punish the wrong party, and the way forward was left as a fresh, lawful review under the Development Control Policy the County has since, finally, enacted in 2026. The legal dispute worth noting. On one side, residents are entitled to orderly, lawful planning and a genuine voice in it, and a county should not raise towers over a neighbourhood on the strength of a draft it sat on for nearly five years while approving at its own discretion. On the other, developers who secured every licence and built in reliance on them should not lose those buildings because the public authority failed to do its job, and the cost of the State's own default should not be shifted onto the innocent party who trusted its approvals. Where the protection of good planning ends and the protection of good-faith reliance begins is the line these judgments walk. Key takeaway: development rights must rest on a plan actually enacted and gazetted under the Physical and Land Use Planning Act, not on a draft policy, however widely it has been used. A county that fails to plan cannot cover the gap with discretion, and a court cannot cover it by planning from the bench. Approvals obtained in good faith will usually stand, and the remedy for a planning vacuum is to compel a lawful plan, not to demolish what was built in reliance on the old one. 👉 Follow @Lexken_EMSLaw for practical legal insights on land use, planning and environmental law.