Chiboli Shakaba, MBS

The battle between high-rise developers and the people of Rhapta Road has finally ended at the Supreme Court. The Rhapta Road Residents Association lost the case. The developers have been allowed to continue with their projects. Existing approvals and EIA licences were not cancelled, and no demolition orders were issued. Key Takeaways from the Supreme Court Decision in Claire Kubochi Anami & Others v Nairobi City County & Others (Petition No. E044 of 2025) 1. The Court has jurisdiction under Article 163(4)(a) only where the case genuinely involves the interpretation or application of the Constitution. Mere citation of constitutional provisions is not enough; the issues must have been pleaded, argued and decided in the courts below. 2. The doctrine of exhaustion does not apply where the petition raises multi-faceted constitutional and systemic issues (especially under Articles 10, 42 and 69) that the specialized tribunals cannot adequately resolve. 3. The 2004 Zoning Guidelines, which the Rhapta Road residents were relying on, are obsolete. They were made under the repealed Physical Planning Act and cannot apply under the 2010 Constitution and PLUPA. 4. The 2021 Development Control Policy, which the County was using as its practical guide, has no legal force because it had not been approved by the County Assembly and gazetted. 5. The concept that “law abhors a vacuum” has clear limits. Courts cannot use it to convert a draft policy into binding law, expand executive discretion created by the County’s own failure, or treat a non-existent instrument as a source of planning standards. the trial court and the Court of Appeal were faulted for descending into law making arena. 6. Courts lack the competence to prescribe zoning classifications or building heights in contested cases without expert evidence. Reliance on Google Maps for zone classification was a methodological error. Courts may compel planning authorities to perform their duties, but they cannot themselves undertake the technical planning exercise or prescribe detailed zoning and height standards. Doing so amounts to judicial overreach. 7. Separation-of-powers limits apply. Courts must not supervise legislative processes, for example, by requiring detailed progress reports or directing how an assembly performs its functions), except in cases of clear incompetence, intransigence or sustained failure. In this case, a basic direction to develop, adopt through the County Assembly and gazette a lawful plan within a fixed period was appropriate. Detailed prescriptions of content and process went too far and amounted to judicial overreach. The structural interdicts were upheld only in limited form. 8. County planning and development (zoning, height controls, density and land-use regulation) is primarily a constitutional function of county governments under the Fourth Schedule and Articles 174, 185 and 186, given content by PLUPA. 9. Constitutional provisions are not all the same. Some create enforceable personal rights (such as Article 42 on a clean and healthy environment). Others are enabling provisions, national values, State duties or allocations of governmental functions (Articles 10, 60, 66, 69 and 186). The Court treated them differently. 10. Article 10 may show unconstitutional institutional conduct but does not create a personal right that can be individually violated for personal relief in the ordinary sense. Article 42 is an enforceable individual right, but it requires actual evidence of violation or threat; assertions of future infrastructure pressure or changes in neighbourhood character are not enough. Articles 60, 66, 69 and 186 do not create personal rights in the way the appellants claimed. 11. A party alleging a constitutional violation must identify the specific right, explain how it was violated and prove the facts with evidence. There is a clear distinction between institutional/governance failure (here, the County’s failure to maintain a valid planning framework) and a proven violation of individual rights. Only the institutional failure was established. Intergenerational equity is grounded in Articles 42 and 69 and is implemented mainly through EMCA and EIA processes; it still requires evidence. 12. Article 23(3) gives courts power to grant “appropriate relief.” The list of remedies is not exhaustive; the remedy must be effective in protecting and vindicating constitutional rights. Structural interdicts (as explained in Mitu-Bell case) are interim, case-by-case, available only for proven or continuing constitutional violations where ordinary remedies are inadequate, and must be specific, clear and effective. 13. Demolition is an exceptional, last-resort remedy. It is permanent, affects property rights under Article 40 and can harm innocent third parties. Any remedy must be effective, necessary, rational, proportionate, just and equitable. Developers who obtain multi-agency approvals in good faith and build in reliance on them should not face demolition in the absence of proven illegality. Where the proven failure is systemic or institutional (lack of a valid planning framework), the proper remedy is an order requiring the County to comply with the Constitution and planning law, not retrospective demolition. 14. Residents of the affected area have standing; Article 70 also confers standing in environmental matters. 15. Development must conform to relevant approved plans. County governments have a non-delegable constitutional and statutory duty to maintain a lawful, coherent, publicly accessible and regularly reviewed planning framework. They cannot rely on unapproved drafts or pure discretion. Courts will enforce that duty, but they will not take over the planning function, prescribe policy content, or order demolition where the primary failure is institutional, and developers acted in good faith. END.