The Environment and Land Court has permanently stopped the construction of a 12 storey apartment block near the Kenya Defence Forces headquarters and State House after finding that Nairobi City County approved the project through an unlawful and unclear planning process.
Justice Oscar Angote quashed all planning permissions, building plans and change of user approvals issued for the proposed 42 apartment development on L.R. No. 209/1458/2 following a petition filed by Tom Brown Limited and former Kilome MP John Harun Mwau.
The disputed property sits about 200 metres from the Defence Headquarters and approximately 950 metres from State House, placing it within what the Ministry of Defence described as a safeguarded area requiring tighter planning checks because of national security concerns.
The court found that Nairobi County failed to show that the Ministry of Defence was consulted before the approvals were issued, despite the Physical and Land Use Planning Act requiring applications affecting safeguarding areas to be circulated to agencies responsible for national security.
The Ministry of Defence told the court that it was never served with the building plans and had not granted clearance for the project.
The judgment also exposed major gaps in the history of the property’s approved use after the court established that the land had previously been changed from residential use to professional offices in 2007, subject to a condition that no redevelopment would be allowed.
Despite that restriction, Nairobi County later approved an application describing the property as a single dwelling plot and changing its use to multi dwelling apartments.
Justice Angote said the county failed to produce evidence showing how the land had lawfully reverted from professional offices back to a single residential dwelling before the fresh change of user was approved.
The judge said every change of user must follow a clear legal process and cannot simply be assumed because planning policies or zoning rules have changed over time.
“The absence of evidence showing the shift from professional offices to single dwelling creates a clear break in the planning chain,” the court said.
The court also questioned claims that proper public participation had taken place after Nairobi County and Nova Realty Group Limited failed to provide satisfactory evidence that a required notice had been placed at the development site.
Although the respondents claimed that an onsite notice had been erected, no photograph of the project board was produced before the court.
The judge said placing a notice at the site was a minimum legal requirement meant to alert neighbours and other people likely to be affected by the development.
The petitioners had argued that they only learnt about the project after an environmental assessment form was dropped at their gate in January 2022, despite the change of user process having started months earlier.
They later raised concerns over traffic, pressure on water and sewer systems, waste disposal, security, privacy and the effect of putting 42 apartments on a plot measuring less than half an acre.
The court also relied on a Nairobi Metropolitan Services letter dated May 17, 2022, which stated that the building application had been deferred because the developer had not obtained Ministry of Defence clearance or a letter of no objection from neighbouring residents.
That letter clashed with Nairobi County’s claim that its Urban Planning Technical Committee had already approved the 42 apartment project in April 2022.
Justice Angote said no evidence was presented to show that the missing approvals identified by NMS were later obtained.
The court described the conflicting records as a troubling lack of clarity and rejected the county’s attempt to rely on the assumption that official approvals are normally issued properly.
“The doctrine of regularity cannot be invoked to sanitise a process where the evidentiary record discloses apparent non-compliance with express legal conditions,” the judge said.
The court also struck out Nova Realty Group Limited’s replying affidavit after finding that Hassan Abdi Mohamed, who swore it while describing himself as a company director, was not listed as one of the company’s registered directors.
Company records produced in court showed that Nova Realty’s directors were Abdulaziz Abdulah Nur, Abdifatah Ali Hassan and Abdurahman W. Jama.
Nova Realty failed to produce a board resolution or any other evidence showing that Mohamed had authority to swear the affidavit on behalf of the company.
The judge ruled that the problem was not a minor technical error because it raised a basic question about whether the person presenting evidence had authority to speak for the company.
As a result, the affidavit was struck out, leaving Nova Realty without a valid replying affidavit on record.
The court further found that Nairobi County violated Mwau and Tom Brown Limited’s rights by refusing or failing to provide applications, approvals, planning minutes and other documents requested by the petitioners.
The petitioners had written several letters between January and November 2022 seeking records explaining how the development had been approved, but the county provided only limited and inconclusive responses.
Justice Angote said withholding the documents frustrated the petitioners’ ability to appeal through the Nairobi County Physical and Land Use Planning Liaison Committee.
The court ruled that the approvals violated the right to fair administrative action and access to justice because an appeal process cannot work when the affected party is denied the decision, supporting documents and reasons behind it.
The judge also found that the project posed a credible threat to the right to a clean and healthy environment because a high density development was approved in a historically low density and safeguarded area without proof that the required legal checks had been completed.
The court did not find sufficient evidence that the approvals themselves had violated the petitioners’ right to privacy, saying concerns about overlooking and loss of seclusion largely related to the possible effects of the building rather than the administrative approvals.
It also did not cancel the project’s environmental impact assessment licence because the petition had not specifically asked the court to set it aside.
The final orders declared Nairobi County’s change of user and building approvals illegal, unreasonable and unprocedural and found that they violated constitutional requirements on public participation, transparency, accountability, fair administrative action, access to justice and environmental protection.
A permanent injunction was issued stopping all development activity on the land, while every planning permission and approval linked to the proposed 12 storey building was quashed.
Nairobi City County, its planning officials and Nova Realty Group Limited were ordered to bear the costs of the case jointly and individually.
