In Claire Kubochi & 2 Others v CECM Built Environment & Urban Planning, Nairobi City County & 20 Others; Millenium Gardens Management Ltd v Metricon Home Nairobi Company Ltd & 2 Others; Mbaazi Avenue Residents’ Association
Introduction
This Friday, 30th October 2026, the Supreme Court of Kenya will deliver two judgments on the regulation of high-rise development in Nairobi. Both descend from Court of Appeal decisions delivered weeks apart in September and October 2025, and both turn on the legal status of the Nairobi City County Development Control Policy, 2021.
Each began as a quarrel of its own: high-rise towers along Rhapta Road and three apartment blocks on Mbaazi Avenue. Each carries to the apex court a common question, namely, how much a court may infer, assume or supply where the planning law itself is incomplete.
For developers, residents’ associations and county governments, two answers arrive at once. We invite you to be on the look out.
Claire Kubochi & 2 Others v CECM Built Environment & Urban Planning, Nairobi City County & 20 Others- Rhapta Road and the Structural Interdict
Claire Kubochi & 2 Others v CECM Built Environment & Urban Planning, Nairobi City County & 20 Others ascends from Civil Appeal No. E160 of 2025 delivered on 19th September 2025.
The officials of the Rhapta Road Residents Association challenged approvals for high-rise developments along Rhapta Road, some up to 28 floors, granted to fifteen developers. The Environment and Land Court (Angote, J.) declared that the approvals, in so far as the number of floors was concerned, violated the zoning provisions, and varied them to a cap of 16 floors pending the County Assembly’s decision on the 2021 Development Control Policy.
At paragraphs 59 to 63, the Court of Appeal upheld the jurisdiction of the ELC notwithstanding the doctrine of exhaustion, holding that “the exhaustion doctrine is not an iron cage” where a petition raises systemic constitutional questions. At paragraph 71, the Court held that the 2004 Zoning Guidelines no longer carry binding legal status; that NIUPLAN 2016 remains a valid county-wide plan which “operates as a compass rather than a detailed map” (paragraph 68); and that the 2021 Development Control Policy “did not attain full legal force without County Assembly approval and gazettement”, although it may be used as an administrative guide.
At paragraph 78, reliance on Google Maps to locate the properties was held to be “a methodological misstep”. Rhapta Road was placed within Zone 3C, with a height allowance of up to 20 floors (paragraph 80), and complaints as to the validity of the EIA licences were held to belong, in the ordinary course, to the National Environment Tribunal under section 129 of EMCA (paragraph 89).
At paragraph 107, the Court issued a structural interdict: Nairobi City County was to complete, adopt through the County Assembly, and gazette the pertinent local physical and land use development and zoning plans and/or a Development Control Policy within six months, filing an interim report within three months and a compliance report within seven days after the six-month period. Approvals and licences “already lawfully issued and acted upon” were preserved absent demonstrated illegality, and the calls for cancellation and demolition were declined.
Millenium Gardens Management Ltd v Metricon Home Nairobi Company Ltd & 2 Others- The Unpleaded Policy
Millenium Gardens Management Ltd v Metricon Home Nairobi Company Ltd & 2 Others; Mbaazi Avenue Residents’ Association ascends from Civil Appeal No. E1010 of 2024 [2025] KECA 1593 (KLR), delivered on 3rd October 2025.
Millenium Gardens, which manages 28 four-storey residential units on Mbaazi Avenue, challenged the development on the adjoining one-acre plot of what it pleaded as three 16-storey blocks of 512 units. NEMA licensed three blocks of 13 storeys comprising 416 apartments. The Environment and Land Court (Angote, J.) dismissed the petition, relying on the 2021 Development Control Policy, which no party had pleaded, to place the property within Zone 4B with a skyline of 16 floors.
At paragraph 67, the Court of Appeal held that “government policies that are in operation cannot be disregarded by the court even if unpleaded, once their existence comes to the knowledge of the court”. At paragraph 68, observing that the Policy bears the words “NCCA APPROVED 10 FEB 2022” and the Speaker’s stamp, the Court deduced, without evidence to the contrary, that it had been approved. The Zone 4B finding, which the appellants contested by placing Mbaazi Avenue in Zone 5 (single-dwelling houses), was left undisturbed as a finding of fact (paragraph 73).
At paragraph 82, the Court held that the precautionary principle requires a finding of threats of serious or irreversible damage, adding at paragraph 85 that “The EIA License is not a blank cheque for Metricon to undertake whatever it wishes to do.” The appeal was dismissed with no order as to costs, and Nairobi City County was directed to ensure that the Nairobi County Physical and Land Use Development Plan or its equivalent is in place within 12 months (paragraph 98).
WHAT TO LOOK OUT FOR ON FRIDAY
In Kubochi and Millenium Gardens, observe how the Court reconciles the two Court of Appeal decisions on the status of the 2021 Development Control Policy, one finding no clear resolution or gazette notice of adoption, the other deducing approval from the Speaker’s stamp. Observe whether structural orders compelling a county to legislate within a fixed period survive the separation of powers, and where the line falls between the constitutional jurisdiction of the ELC and the Liaison Committees under section 78 of PLUPA and the National Environment Tribunal.
LIKELY IMPLICATIONS
- Developers should verify the zone, not merely the approval. Until Nairobi gazettes its plans, the zoning of a parcel under the 2021 Development Control Policy, and the legal status of that Policy, remain live risks to permissible height and to the value of security.
- Residents’ associations should choose the forum with care. Discrete challenges to an approval or an EIA licence ordinarily lie with the Liaison Committees and the National Environment Tribunal; constitutional petitions are reserved for systemic failures.
By the close of business this Friday, the Supreme Court will settle whether Nairobi’s skyline is governed by law or by discretion.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set out in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact our W&A Litigation Department Litigation@wamaeallen.com.
About the author
Caxstone specializes in civil, employment and labour disputes, constitutional law, family law and succession, and environment and land matters. He has amassed a wealth of knowledge and experience in litigation which is evident in the successes obtained for clients. He is an active member of the Employment and Labour Relations Court Bar-Bench committee.
Denis Mutugi specializes in Commercial Litigation and Alternative Dispute Resolution.
Denis graduated with a Bachelor of Laws, LLB (Hons) from The University of Nairobi in 2021 and was admitted to the Roll of Advocates of the High Court of Kenya in the year 2023.
Denis has amassed a considerable wealth of experience in conducting legal research on various complex legal matters touching on Commercial, Insurance, Employment and Insolvency law and bankruptcy.
Frankline M. Otieno is a dispute resolution associate, recommended professional and committed to offering sustainable client-centred solutions to legal issues.Frankline is astute in commercial litigation, securities law, banking law, intellectual property litigation, public procurement, land law litigation, Judicial Review and Administrative law litigation, sports law, tax litigation, administrative law, consumer protection law, competition law and constitutional litigation.
