Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedPetition dated 12th August 2024· [2025] KEELC 128 (KLR)

Anami & 2 others (Suing as Officials of Rhapta Road Residents Association) v County Executive Committee Member(CECM) Built Environment and Urban Planning, Nairobi City County & 20 others (Environment and Planning Petition E030 of 2024) [2025] KEELC 128 (KLR)

Environment and Land Court
23 January 2025
OAO. A. Angote
33,180 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~133 min to read original · ~4 min brief

The bottom line

#

Nairobi's High Court capped Rhapta Road high-rises at 16 floors, ruling that even unapproved county zoning policies bind developers and the county government.

What this practically means

#

Executive summary

#
The Petitioners, the Rhapta Road Residents Association and another, challenged development permissions granted by the Nairobi City County Government and EIA licenses issued by NEMA for ten high-rise developments along Rhapta Road, contending the approvals breached the zoning restrictions of the NIUPLAN 2016 (four storeys in Zone 4) and the unapproved Nairobi City County Development Control Policy 2021/2022, and violated their rights under Articles 10, 42, 69 and 70 of the Constitution. The Respondents countered that the 2004 Guidelines and NIUPLAN were superseded, that the County had no enacted zoning policy and processed applications using discretion, and that all statutory procedures, public participation and EIA processes were followed; several developers also raised objections based on exhaustion of local remedies, locus standi, misjoinder and the Anarita Karimi Njeru specificity test. The court held that the multifaceted Petition qualified for exemption from the doctrine of exhaustion; that the Petitioners had standing under Article 70 without proving personal injury; that the Petition met the specificity threshold; and that the 10th Respondents were properly joined. On the merits, the court found the suit properties lie within Zone 4B (Muthangari) under the unapproved 2021 Development Control Policy, which caps development at 16 levels and 75% ground coverage, and that the County was bound by that draft policy pending County Assembly approval. Approvals exceeding 16 floors were declared to have violated the zoning provisions and were varied to the 16-floor limit. The EIA licenses were held to have been lawfully and procedurally issued, subject to compliance with their conditions. The Petition partially succeeded: declaratory orders were issued varying the approvals and directing compliance with the 2021 Policy; damages were declined as the Petition was public interest litigation; and each party was ordered to bear its own costs.

Key legal issues

#
01

Whether the court had jurisdiction despite the doctrine of exhaustion

Holding

The Petition is multifaceted, raising constitutional environmental claims and planning issues that the NET and the County Liaison Committee cannot adequately resolve; it qualifies for exemption from the exhaustion doctrine.

Reasoning

The court applied the Supreme Court's nuanced approach in Nicholus, holding that EMCA Section 129 appeals concern licenses, not constitutional violations, and that it would be impractical to require the Petitioners to pursue two different tribunals. The remedies available before the Liaison Committee and NET were not efficacious or adequate for the constitutional claims under Articles 42, 69 and 70.

p. 44
02

Whether the development approvals breached zoning guidelines

Holding

The suit properties fall within Zone 4B (Muthangari) under the unapproved 2021 Development Control Policy, which caps development at 16 levels and 75% ground coverage; approvals exceeding 16 floors violated the zoning provisions and the legitimate expectation created by the published draft policy.

Reasoning

The court found the 2004 Guidelines outdated and not a Local Physical and Land Use Development Plan under Section 46 of PLUPA. The 2021 Policy, though unapproved, is the closest relevant document and binds the County pending County Assembly approval. The court located the suit properties in Zone 4B and held approvals exceeding 16 floors unlawful, varying them to the 16-floor limit.

p. 53
03

Whether the EIA licenses were lawfully issued

Holding

The EIA licenses were procedurally and lawfully issued; public participation was adequate and the concerns raised were addressed; the licenses remain valid subject to compliance with their conditions.

Reasoning

The court reviewed the EIA study reports for each property, noting statutory public participation through gazette notices, newspapers, radio and public meetings, and found the 4th Respondent's evidence unchallenged. The court emphasised that the parties should focus on implementation and monitoring of the mitigation measures in the EIA reports.

p. 62
04

Whether the Petitioners had locus standi and whether the Petition met the specificity test

Holding

The Petitioners had standing under Article 70 and Section 3(3) of EMCA without proving personal injury, and the Petition satisfied the Anarita Karimi Njeru specificity test by particularising the rights and provisions infringed.

Reasoning

Evidence of registration and residency established the Association's standing; in any event environmental standing under Article 70 requires no demonstration of loss. The Petition articulated violations of Articles 10, 42, 69 and planning duties, satisfying the link between party, provisions and contravention.

p. 46
05

Whether the 10th Respondents were properly joined

Holding

The joinder of the 10th Respondents was proper given their directorship of KNP Properties, the listed owner of the suit property in the EIA Report.

Reasoning

Applying Salomon v Salomon, the court noted the company is separate from its members, but found that two of the 10th Respondents are directors of KNP Properties and all four were listed as owners in the EIA Report, justifying their joinder.

p. 47

Legal principles established

#
  • An unapproved draft policy, in the absence of an enacted policy, may guide administrative action and create a legitimate expectation binding the issuing authority.
  • A multifaceted petition raising constitutional environmental claims may be exempted from the doctrine of exhaustion where the alternative fora cannot grant adequate remedies.
  • Under Article 70(3) and Section 3(3) of EMCA, a person asserting the right to a clean and healthy environment need not demonstrate personal loss or injury to have standing.
  • Appropriate constitutional relief must balance the interests affected and effectively address the infringement.

Court orders

#
  1. 1.A declaration that the approvals for development permissions granted by the 1st and 2nd Respondents with respect to the properties registered in the names of the 6th to 20th Respondents, in so far as the number of floors is concerned, were granted in violation of the zoning provisions set by the 2nd Respondent.
  2. 2.A declaration that the development approvals issued to the 6th to 20th Respondents are varied limiting the number of floors to 16, subject to the County Assembly of Nairobi's decision while approving the 2021 Nairobi City Development Control Policy.
  3. 3.A declaration directing the 1st, 2nd, 3rd and 4th Respondents to henceforth comply with the Nairobi City County Development Control Policy, 2021 when granting development permissions to any developer in the Rhapta Road area, pending approval of the said policy by the County Assembly of Nairobi.
  4. 4.Decline to grant damages, the Petition being in the nature of public interest litigation.
  5. 5.Each party to bear their own costs.
Jurisdiction invoked
Articles 42, 69 and 70 of the Constitution; Section 3(3) of the Environmental Management and Coordination Act; original jurisdiction of the Environment and Land Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (9)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Anami & 2 others (Suing as Officials of Rhapta Road Residents Association) v County Executive Committee Member(CECM) Built Environment and Urban Planning, Nairobi City County & 20 others (Environment and Planning Petition E030 of 2024) [2025] KEELC 128 (KLR)", Case Analysis (2025). Petition dated 12th August 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/128/eng@2025-01-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.