Nairobi High-Rise Rules Face Supreme Court Challenge

Kenya’s Supreme Court has reserved its decision in a dispute over a proposed 16-storey apartment development in Lavington, Nairobi, with the case centred on which zoning rules applied when the project was approved.

A five-judge bench led by Chief Justice Martha Koome heard an appeal by residents challenging Metricon Home Nairobi Company Limited’s proposed development on Mbaazi Avenue. The court is expected to notify the parties of the date for its judgment.

The dispute concerns plans to build three 16-storey residential blocks containing 512 units on a one-acre site next to Millennium Gardens, a gated development of four-storey townhouses. The residents argue that the project should be governed by Nairobi’s 2004 zoning guidelines, which limit buildings in the area to four floors. 

Metricon maintains that it obtained the required approvals and that Nairobi City 

County was entitled to assess the project under its 2021 Development Control Policy. The residents have raised concerns about the size of the proposed development and its potential impact on roads, drainage, sewerage and other infrastructure. They have also cited reduced sunlight and environmental concerns.

The dispute has already been considered by two lower courts. 

The Environment and Land Court dismissed the residents’ petition in September 2024, and the Court of Appeal upheld that decision in 2025. The residents then appealed to the Supreme Court, arguing that the case raises constitutional issues that extend beyond the planning approval for the individual project.

Their main challenge concerns the legal status of the 2021 Development Control Policy. Representing the residents’ association, lawyer Dudley Ochiel told the Supreme Court that the document was still a draft and had not acquired the legal status required to determine the rights of the parties.

Mr Ochiel argued that the lower courts had departed from the regulatory framework accepted by the parties at trial, which was the 2004 zoning guidelines.

The residents contend that a draft policy cannot become binding simply because a court considers it sufficiently well known. They argue that allowing an unfinished policy document to change existing rights before the required legislative and public-participation processes are completed would undermine the legal process for adopting planning rules.

Mr Ochiel asked the Supreme Court to uphold the four-floor limit applicable to the site. If the appeal succeeds, the residents have asked the court to order that the development be reduced to the permitted height. Metricon has rejected the residents’ arguments. Its lawyer, Duncan Chebon, told the court that the company obtained the necessary approvals and licences from Nairobi City County and the National Environment Management Authority before construction began.

Mr Chebon argued that those approvals had not been successfully challenged through the relevant planning or environmental procedures and should therefore be regarded as valid. He also disputed the claim that the 2021 policy could not be relied upon. Mr Chebon argued that the document was sufficiently established for a court to recognise it and referred to an earlier Supreme Court decision in which the policy had been treated as a matter of public notoriety.

He further argued that much of the residents’ case sought to reopen factual findings already made by the Environment and Land Court and upheld by the Court of Appeal. Nairobi City County has also defended the basis on which the development was approved. Its lawyers argued that, once the constitutional issues are removed, the dispute is essentially a planning matter. The county maintains that its decisions were guided by the 2021 policy.

The residents have disputed that position, arguing that the existence of a later county planning policy supports their claim that the 2021 document was still an incomplete policy instrument when it was relied upon by the courts. The Supreme Court’s ruling could determine how courts treat planning instruments that have not completed the formal process required for their adoption.