The Supreme Court is set to determine a dispute concerning Nairobi's high-rise developments and the alleged breach of zoning rules in a case arising from a Lavington apartment project.

At the centre of the appeal filed by residents is whether the lower courts properly relied on the Nairobi City County Development Control Draft Policy, 2021 to uphold approvals for a 16-storey apartment development on Mbaazi Avenue proposed in 2023.

The residents contend the applicable framework was the 2004 zoning guidelines, which limit buildings in the area to four floors, while the developer, Metricon Home Nairobi Company Limited, says it obtained all approvals required by law.

A five-judge bench led by Chief Justice Martha Koome heard arguments from lawyers representing the residents, developer, and Nairobi City County government before reserving judgment.

Chief Justice Martha Koome.

Photo credit: File | Nation

The court said the judgment would be delivered on a date to be communicated to the parties.

The dispute stems from Metricon's plan to construct three 16-storey high apartment blocks with 512 housing units on a one-acre plot adjacent to Millennium Gardens, a gated community of four-storey townhouses.

Residents argue the development exceeds the area's zoning limits and will affect sunlight, infrastructure, traffic, sewerage and the character of the neighbourhood.

Court records show the Environment and Land Court dismissed the petition in September 2024 before the Court of Appeal upheld that decision in 2025, prompting the appeal to the Supreme Court.

Appearing for the residents’ association, lawyer Dudley Ochiel told the judges the appeal raises a constitutional question on whether courts can rely on an unapproved draft policy to determine legal rights.

He argued that the project violates the applicable zoning rules and that the lower courts wrongly relied on the Nairobi City County Development Control Policy, 2021, which they say was only a draft.

He said that all parties before the Environment and Land Court had agreed the applicable planning framework was the 2004 zoning guidelines before the trial court introduced the 2021 policy on its own motion.

"This appeal raises the question whether an inchoate or draft policy can either be implemented or used by the court to limit anyone's right," Mr Ochiel told the bench.

He added that "all parties agreed that the applicable policy or regulation were the 2004 zoning guidelines," but both lower courts determined the dispute using the 2021 policy, which he described as a draft.

According to the residents, the 2021 policy was merely a draft undergoing legislative approval and public participation and therefore could not lawfully justify a 16-storey building where the applicable zoning permitted only four floors.

"Policy not gazetted"

Mr Ochiel argued the policy had not been formally adopted or gazetted when the dispute was determined.

"A law must be gazetted. The policy was not gazetted. It was still in draft," he said. He urged the court to find that the applicable zoning limit remained four floors and asked that the completed structure be reduced from eight floors to four if the appeal succeeds.

Representing Metricon, lawyer Duncan Chebon defended the approvals issued to the project and said they had never been successfully challenged before the relevant planning or environmental bodies.

"Before commencing the construction... it obtained all the statutory approvals and licences from the Nairobi City County and Nema," he submitted. He argued the Supreme Court should proceed on the basis that those approvals were valid.

Mr Chebon also defended reliance on the 2021 Development Control Policy. He said it was "a document of public notoriety" capable of judicial notice under the Evidence Act and noted that the Supreme Court had previously described it in those terms while declining interim orders.

He argued that the appeal largely sought to reopen factual findings already made by the Environment and Land Court and affirmed by the Court of Appeal.

Counsel for Nairobi City County similarly argued that the dispute turned mainly on factual issues rather than constitutional interpretation.

The headquarters of the Nairobi City County Government offices on City Hall Way.

Photo credit: Lucy Wanjiru | Nation Media Group

He described the petition as "a mundane, ordinary planning dispute" once the constitutional arguments were stripped away and maintained that the county relied on the 2021 policy when processing the development approvals.

However, in a brief reply, Mr Ochiel maintained that the subsequent adoption of a newer county planning policy reinforced the residents' argument that the 2021 document remained a draft when the lower courts relied on it.

"Rights can be limited by a policy, but not through an inchoate policy," he said.

The Supreme Court is expected determine whether reliance on the draft policy violated constitutional guarantees, environmental rights and the limits of judicial notice.

Follow our WhatsApp channel for breaking news updates and more stories like this.

jwangui@ke.nationmedia.com