Judicial Supervision In Urban Planning: Analysing The Court Of Appeal's Landmark Decision In The Rhapta Road Zoning Case

The Court of Appeal in Civil Appeal No. E160 OF 2025 ("Court"), delivered judgment in a significant appeal concerning the governance of urban planning and high-rise development approvals along Rhapta Road, Nairobi. The appeal arose from Environment and Planning Petition E030 OF 2024 ("ELC") by the officials of the Rhapta Road Residents Association (the "Appellants") challenging the legality of multi-storey development approvals granted by the Nairobi City County ("City County") and associated environmental licences, on grounds of breach of zoning laws, planning statutes and constitutional rights to a clean and healthy environment. The primary respondents included the Nairobi City County Government and its County Executive Committee Member for Built Environment and Urban Planning, the National Environment Management Authority and its Director General as well as a group of private developers.

Recap of the ELC judgement

The ELC had, in a detailed judgment dated 23 January 2025, found that the impugned approvals for high-rise developments, some up to twenty eight (28) floors, were inconsistent with the operative zoning regime. The ELC held that the 2004 Nairobi City Development Ordinances and Zones Guidelines (the "2004 Zoning Guidelines") were outdated, and that while the 2021 Nairobi City Development Control Policy (the "2021 Policy") was not yet formally approved, it was being applied in practice as an administrative guide. The court held that as per the unapproved 2021 Policy the suit properties were within the Zone 4B/Muthangari and until the City County amended the same, the allowable height of all developments in the aforementioned zone is sixteen (16) levels with a maximum ground coverage of 75%. The court declared that development approvals exceeding sixteen (16) floors were in violation of the 2021 Policy. It ordered that all ongoing and future developments in the area must comply with the 16-floor limit and the 2021 Policy's other requirements. However, the court declined to order demolitions or award damages, recognising the public interest nature of the litigation and the investments already made.

This judgment underscored the importance of adherence to urban planning laws, public participation and environmental protection in Nairobi's rapid urbanisation. It also clarified the role of draft policies in guiding development where formal policies lag behind urban realities.

Key issues on appeal

The Appellants, dissatisfied with the ELC's refusal to grant more radical relief (including cancellation of all the approvals and demolition), argued that the ELC had erred in law by descending into the arena of policy-making and capping the permissible floors to sixteen (16) floors without legal basis. Further that the ELC failed to enforce the last valid zoning instrument, the 2004 Zoning Guidelines which limited Zone 4 to four (4) floors. The Appellants contended that they did not seek for the ELC to apply an unapproved draft but rather they sought to compel the county to gazette and adopt a lawful policy.

A cross-appeal contended that the ELC erred in classifying Rhapta Road as Zone 4 (with a 16-floor limit), rather than Zone 3C (which permits up to twenty (20) floors under the 2021 Policy). The developer respondents argued that they should not be penalised where they had acted in reliance on the approvals granted by the competent authorities. They urged the Court to consider the importance of stability in approvals to avoid disrupting multi-billing-shilling investments. Their request was that the cross-appeal be allowed to correct the zoning error and validate the granted approvals of up to twenty (20) floors.

The Court outlined five issues for consideration:

1. Whether the ELC had jurisdiction in light of statutory exhaustion doctrines under the Physical and Land Use Planning Act and the Environmental Management and Coordination Act (Cap 387) ("EMCA").
2. The legal status and force of the 2004 Zoning Guidelines, Nairobi Integrated Urban Development Master Plan 2016 ("NIUPLAN 2016"), and the 2021 Policy.
3. The correct zoning classification of the affected properties. This classification was vital as it carried different implications for permissible density and floor heights.
4. The lawfulness of the Environmental Impact Assessment ("EIA") licences issued to the developers and whether they were lawfully granted or impugnable on grounds of irrationality, procedural unfairness, ultra vires action or inadequate public participation.
5. The appropriate form of relief, including whether a structural interdict was warranted, noting the alleged governance gaps.

Court of Appeal judgment

The Court dismissed the appeal but went ahead to outline the following findings. The Court further declined to invalidate existing approvals or order demolitions, holding that developers who obtained permissions in good faith should not be retroactively penalised, but that all future approvals must comply with lawful, participatory and sustainable planning frameworks.

1. Jurisdiction and exhaustion: The Court affirmed that, while the doctrine of exhaustion generally requires parties to pursue statutory dispute resolution mechanisms, exceptions exist for constitutional and systemic governance challenges. The Court satisfied itself that the ELC was correct to assume jurisdiction given the systematic and constitutional question about Nairobi's City County's planning governance specifically, the City County's admitted failure to finalise, approve and gazette lawful zoning and development control instruments.
2. Status of planning instruments: The Court held that the 2004 Zoning Guidelines, though influential, no longer have binding legal status under the current devolved framework. NIUPLAN 2016 remains a valid, strategic plan but does not provide parcel-specific zoning. The 2021 Policy, while not yet formally adopted by the County Assembly, may be used as an interim administrative guide, but does not have the force of law until properly approved and gazetted.
3. Zoning classification: The Court found that the ELC erred in classifying Rhapta Road as Zone 4/4B. On the evidence, including the 2021 Policy, Rhapta Road is within Zone 3C, which permits up to 20 floors. The Court allowed the cross-appeal to the extent that any project whose frontage and access is on Rhapta road shall, for floor count purposes, be assessed under Zone 3C parameters subject to all technical and environmental controls. The Court further varied the ELC sixteen (16) floor cap to twenty (20) floors pending final County action.
4. Environmental Impact Assessment ("EIA") licences: The Court upheld the ELC's finding that the EIA licences were lawfully issued. The Appellants did not demonstrate procedural unfairness or breach of EMCA, and any challenge to the substance of EIA licences should ordinarily be brought before the National Environment Tribunal under EMCA.
5. Relief and structural interdict: Recognising the systemic governance gap and the absence of up-to-date, legally enforceable zoning policies, the Court issued the following structural interdict (a supervisory order).
6. The City County must, within six (6) months, finalise, approve through the County Assembly and gazette comprehensive zoning and development control plans for the entire city, including Rhapta Road and other high-density areas.
7. Within (3) three months of the judgement, the City County must file a progress report with the Court detailing steps taken, such as public participation, drafting of bills or policies and consultations with professional bodies.
8. After six (6) months, a final compliance report must be filed, including the gazetted instruments and a summary of public participation.

The reports must be served on the Appellants, County Executive Committee Member Built Environment And Urban Planning, the City County, National Environment Management Authority, and relevant civic groups, including registered residents associations, who may respond within 21 days with comments or objections. The Court will retain limited supervisory jurisdiction to review compliance and issue further directions if needed

Implications of the judgment

For the Appellants: Their advocacy led to a significant structural order compelling the City County to regularise and update its planning and zoning framework within a set timeline, with ongoing judicial supervision and stakeholder participation.

For the Nairobi City County: The City County is now under a court-ordered, time-bound obligation to finalise, approve and gazette lawful zoning and development control plans, with progress and compliance reports required. In the interim, the City County may continue using the 2021 Policy as an administrative guide.

For the Developers: Those who obtained approvals in good faith are protected from retroactive invalidation or demolition, unless illegality is proven. For Rhapta Road, the Court clarified that the area falls under Zone 3C (allowing up to 20 floors).

As the judgment involves constitutional issues, any party may appeal to the Supreme Court. The current orders will remain effective unless and until the Supreme Court decides otherwise. We will endeavour to update our readers on any further updates.

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