On 3rd October 2025, the Court of Appeal delivered its judgment in Civil Appeal No. E1010 of 2024, Mbaazi Avenue Residents Association & Another versus Metricon Home Nairobi Company Limited & 2 Others.

The appeal challenged the legality of approvals for construction of high-rise developments along Mbaazi Avenue in the Thompson Area. The appellants, Mbaazi Avenue Residents Association (MARA) and Millenium Gardens Management Limited, had filed a suit in the Environment and Land Court (ELC) contending that the construction of three 16-storey apartment blocks comprising 512 units contravened the applicable zoning policy, was undertaken without proper public participation, and violated their right to a clean and healthy environment. The appellants argued that the applicable zoning policy limited developments to a maximum of four storeys.

Similar to Civil Appeal No. E160 of 2025, the Court of Appeal was required to determine the legal framework governing urban planning in Nairobi and to assess whether the ELC erred in dismissing the petition. These are the salient findings of the Court: 

1. The Binding Legal Framework: The ultimate authority for planning is derived from the Constitution (particularly Articles 10, 42, and 69) of the Constitution of Kenya 2010 and the Physical and Land Use Planning Act, 2019 (PLUPA). The court also noted that the Urban Areas and Cities Act, 2011, and the County Government Act, 2012, govern land use and development plans. 
2. Obsolete Instruments: The Nairobi City Council: A Guide of Nairobi City Development Ordinances and Zones (City Council of Nairobi, 2004) ("2004 Zoning Guidelines") are legally obsolete and no longer have binding legal status. The learned Judge held that the guidelines had long been overtaken by events and failed to account for the dynamic nature of urban planning. 
3. Public Participation: The Court found that Metricon had demonstrated that it conducted public participation in two phases: during the change of user process and the Environmental Impact Assessment (EIA) stage. The court held that there was substantial compliance with EMCA, noting that the appellants conceded that they attended the publicized meetings and had adequate opportunity to present their views.
4. On Environmental claims: The Court of Appeal upheld the ELC findings that the appellants had failed to establish a viable threat of serious or irreversible environmental damage to warrant stopping the project. Concerns over structural instability were addressed through Metricon’s geotechnical report and the conditions attached to the EIA License mandating site investigation and support systems. Allegations regarding obstruction of natural light were found to be unsubstantiated. Concerns regarding infrastructure strain, particularly, sewerage and traffic, were adequately mitigated by evidence in Metricon’s EIA report, which demonstrated connection to the national sewerage system and included a Traffic Impact Assessment. Claims of air and water pollution from exhaust fumes were dismissed as mere apprehension without scientific foundation. 
5. Strategic Policy: The Court of Appeal found that the Nairobi Integrated Urban Development Master Plan (NIUPLAN) of 2014 is a valid, broad spatial framework enacted by the County Government to guide urban planning and development from 2014 to 2030, and it supersedes the 2004 Zoning Guidelines. The Court further noted that the Nairobi City County Development Control Policy (December 2021) (“Development Policy 2021”) was duly approved by the County Assembly on 10th February 2022, and together with NIUPLAN, forms the current legal and policy framework governing development control and approvals within the County. The Development Policy, 2021, designates the location of the suit property as falling within Zone 4 B, where the prescribed building height limit is 16 floors, which is consistent with Metricon’s proposed development. 

The Court ultimately found the appeal to be without merit and dismissed it. It upheld the ELC’s findings that the Appellants failed to establish a viable threat of serious or irreversible damage to the environment and that the project was not invalidated based on the outdated 2004 Zoning Policy. 

Conclusion 

Notwithstanding the dismissal of the appeal, the Court, exercising its remedial power under Article 23 of the Constitution, found it necessary to issue structural orders to ensure future compliance with development and planning laws by the County Government. The Court agreed with the trial Judge on the urgent need for the Nairobi City County to implement the definitive Nairobi County Physical and Land Use Development Plan. 

Pursuant to this mandate, and in addition to structural interdicts issued in Civil Appeal No. E160 of 2025, the Court directed the Nairobi City County to ensure the Nairobi County Physical and Land Use Development Plan or its equivalent is in place within 12 months from the date of the delivery of the decision (October 3, 2025). At the lapse of this 12-month period, MARA and Millenium Gardens shall be at liberty to move the ELC for appropriate orders towards compliance with the direction.