The Environment and Land Court has stopped the construction of a proposed 12-storey apartment block near the Department of Defence (DoD) headquarters in Nairobi after finding that the approvals issued by Nairobi County were unlawful and obtained in breach of planning laws.
The court quashed all planning approvals, change-of-user permissions and development authorisations issued for the proposed 42-unit apartment development on L.R. No. 209/1458/2, a property bordering the Chinese Embassy and the Kenya Defence Forces (KDF) headquarters.
The case was filed by Tom Brown Limited and former Kilome MP Harun Mwau, who argued that the approvals were granted without following the law.
The Ministry of Defence joined the proceedings, saying it was never consulted despite the project being located within a safeguarded area.
“Ultimately, it is the finding of the court that the development approvals cannot be said to have been issued lawfully, reasonably, or in conformity with the governing planning framework,” the court said.
The court found there was no evidence that the developer had addressed conditions raised by the then Nairobi Metropolitan Services (NMS), including obtaining clearance from the Ministry of Defence and notifying neighbouring landowners before the approvals were issued.
It was the court’s finding that the approval process also failed to comply with the Physical and Land Use Planning Act (PLUPA), noting that every change of user requires its own independent approval process.
The court said there was no evidence that the property had lawfully reverted from office use to a single dwelling before approval was granted for a multi-dwelling development, creating what he described as a break in the planning process.
“Equally, the planning brief asserts that ‘the change of user process requires that the general public be involved in the planning stage’ and that several public participation measures were undertaken involving both the general public and adjacent neighbours. However, no satisfactory material was placed before the court to substantiate that those measures were in fact undertaken or complied with in the manner alleged,” Justice Angote said.
The court noted that the property lies about 200 metres from Defence headquarters and falls within a safeguarded area where the law requires planning applications to be circulated to relevant national security agencies.
“In such circumstances, Section 60(h) of the PLUPA expressly requires circulation of the application to relevant agencies, including those concerned with national security. The Ministry of Defence maintains that it was never notified of the proposed development, a position that has not been controverted by the Respondents,” the court said.
The court said the position was reinforced by an NMS letter dated May 17, 2022, which deferred approval of the building plans because the developer had not obtained clearance from the Ministry of Defence or letters of no objection from neighbouring residents.
The court acknowledged that not every planning irregularity amounts to a constitutional violation but found that the cumulative failures in this case rendered the approvals unconstitutional.
“The court is mindful that not every irregularity in planning administration amounts to a constitutional violation. However, in the present case, the cumulative effect of the procedural and statutory lapses found above renders the impugned approvals constitutionally infirm.”
The court held that the approvals violated Articles 10, 47, 48 and 69 of the Constitution and posed a real threat to the petitioners’ environmental rights under Article 42.
Mr Mwau told the court that the area has historically been a low-density residential neighbourhood comprising single-storey homes because of its proximity to the Chinese Embassy and Defence headquarters.
They argued that successive owners of the property had unsuccessfully sought since 1987 to change its use from a single dwelling to offices and other incompatible developments.
They said the current owner, Nova Realty Group Limited, ignored restrictions attached to a 2007 change of user approval that prohibited redevelopment and required the property to retain the area’s low-density character.
The petitioners also argued that no notice of the proposed development was displayed on the property and neighbouring residents were never consulted as required by law.
The Ministry of Defence backed the petition, maintaining that Nairobi County was legally required to refer the application to it because the project falls within a safeguarded area.
The county government defended the approvals, arguing that Kilimani has evolved into a mixed-use neighbourhood and that the development complied with existing planning policies, while the developer insisted it had lawfully obtained all approvals.
The county government submitted that Kilimani has, over three decades, transitioned into a mixed-use zone and that the older Nairobi City Development Ordinances and Zones, 2004 are no longer adequate in light of constitutional and demographic realities.
