LAND USE PLANNING IN URBAN KENYA: A COUNTY GOVERNMENT CHALLENGE

THE ROLE OF COUNTY GOVERNMENTS IN THE SUSTAINABLE DEVELOPMENT OF CITIES AND TOWNS

Sustainable urban planning in Kenya remains elusive owing to decades of inconsistent land use planning by successive municipal and county governments and a reactive approach to planning. County Governments are the primary custodians of land use planning processes in Kenya today and perform these functions with the backdrop of historical issues as well as present-day realities. We explore the legal framework relating to county land use planning to examine this crucial role even as urban areas like Nairobi continue to grow rapidly.

Introduction

Nairobi was once renowned for its favorable reputation as the “Green City under the Sun.” Unfortunately, this reputation has been diminished in recent decades by a lack of proper land use planning. The cumulative result is significant congestion and related urban management and environmental challenges within the city.[1] This picture is replicated across many urban areas in Kenya.

The promulgation of the Constitution of Kenya 2010 brought about devolution, with most physical planning functions vested in county governments. This shift meant that counties would be the institutions primarily tasked with ensuring urban planning in Kenya was sustainable and productive.

Accordingly, this piece will examine the role of county governments in land use planning, discussing both the statutory framework thereto as well as looking at a few court decisions guiding their functions.

The Statutory Framework for Land Use Planning in Kenya

Article 66 (1) of the Constitution of Kenya permits the State to regulate the use of any land, or any interest in or right over any land, in the interest of defence, public safety, public order, public morality, public health, or land use planning, [2] with the Fourth Schedule of the Constitution vesting county governments with the power to regulate land use planning within their jurisdiction.

The Physical and Land Use Planning Act, Cap 303 (the “PLUPA”) is the primary legislative framework for regulation of land use planning in Kenya. Section 2 of PLUPA defines Land Use Planning as the process of designating, regulating, evaluating, zoning and organizing the present and future use and development of land in all its geographical areas and its resources to secure the physical, economic and social efficiency, health and well-being of urban and rural communities.

The PLUPA gives effect to the Fourth Schedule of the Constitution as Section 56 of the PLUPA vests county governments the power to control use and development of land within their areas of jurisdiction in the interests of proper and orderly development.[3] At the national level, the National Physical and Land Use Planning Consultative Forum, led by the Cabinet Secretary responsible for matters Physical Planning and the Director General Physical and Land Use Planning, plays an overall consultative and coordination role for national physical planning.

County Governments are guided by physical planning principles listed in Section 5 of the PLUPA such as sustainable and comprehensive planning, inclusivity, public participation, and related principles in undertaking their land use planning functions.

One of the key functions of county governments under Section 36 of the PLUPA is the preparation of physical and land use development plans every ten years. These plans should align with intercounty and national physical and land use plans, necessitating coordination with other neighbouring counties as well as the national government on physical planning. Under Section 46 of the PLUPA, the functions of local physical and land use plans are zoning, urban renewal, or redevelopment, guiding and coordinating the development of infrastructure, and regulating land use and land development.

The County Governments Act of 2012 also speaks to the need for formulation of development plans by County Governments. Under Section 107 (1) (c), counties shall have spatial plans as well as cities and urban areas plans as provided for under the Urban Areas and Cities Act (Cap. 275) to harmonize, guide and facilitate development. [4]

These functions show the critical role that local land use plans play in the regulation of urban development. Zoning is an especially crucial function as one of the key reasons for haphazard development is flouting or irregular approval of zoning regulations when approving new developments.

The office of the county executive in charge of physical planning is the primary institution that approves development plans in Kenya in each county. Under Section 58 of the PLUPA, applications for development permissions must be submitted using the prescribed forms, and taking into account requirements under the law for consideration and approval by the county government.

Where such development involves a change/extension of use of more than 20% of the existing use, Regulation 4 (2) (a) of the Physical and Land Use Planning (General Development Permission and Control) Regulations of 2021 requires that a change of use application be submitted. It is necessary that all development permissions are in compliance with the zoning regulations of the county including the spatial plans as well as the land use and physical development plan.

Urban Planning is a “dynamic and ever-evolving affair”

The Nairobi Metropolitan Area continues to experience exponential growth and the same holds for new cities in Kenya, being Nakuru, Kisumu and Eldoret, driven by new opportunities in the devolved units as well as population growth. The effect of this growth has been haphazard real estate development and a strain on public infrastructure. Such trends inform the requirement under Section 36 (1) of the PLUPA for county governments to prepare new county physical and land use development plan for that county once every ten years.

Courts have developed some jurisprudence over the years on the dynamic nature of land use planning functions of county governments. These decisions provide useful guidance on the need for counties to live up to their constitutional and statutory mandate.

The Environmental and Land Court in Millennium Gardens Management Limited v Metricon Home Nairobi Company Limited; Nairobi City County Government & 2 others (Interested Parties) (2023)spoke to the need for county governments to streamline development approval processes within the county. The court noted that the Nairobi City Development Ordinances and Zones of 2004 had been superseded by events unforeseen at the time of their formulation as urban planning was a dynamic and ever evolving affair (Emphasis added).

The zoning guidelines done in 2004 did not account for realities under the more recent NIUPLAN and the Nairobi City County Development Control Policy, 2021 as well as population and urban development trends since. The ELC further noted that even though NIUPLAN and the Development Control Policy were useful operational documents, there was still the need to enact a Nairobi County Physical and Land Use Development plan, as envisioned under the PLUPA for sustainable land use planning in Nairobi.

Courts also consider existing and proposed spatial plans in determining the validity of issued development approvals by County Governments. In Anami & 2 Others (Suing as officials of Rhapta Road Residents Association Vs County Executive Committee Member (CECM) Built Environment and Urban Planning, Nairobi County & 20 others (“Anami”), the ELCfound that approvals that were granted by the county government of Nairobi, which were for buildings of up to 22 floors, were in breach of the policy which only permitted a maximum of 16 floors for areas in zone 4B where the properties whose development approvals were in dispute were located and were inconsistent with the zoning under the Nairobi Integrated Urban Development Master Plan [NIUPLAN], 2016, and the proposed  Nairobi City Development Control Policy. which provided spatial framework guiding urban development in the city within the time of development.

The ELC in Anami (supra) issued nuanced directions by declaring that approvals for development permissions granted by the county government and an environmental impact assessment license granted with respect to the properties subject matter of the suit, in so far as the number of floors is concerned, were in violation of the county zoning requirements but stopped short of invalidating the approvals completely by directing the developers to construct only up to the 16th floor and not to the initially approved 22 floors.

The need for proactive urban planning by County Governments

From the above cases, it is evident that counties must develop and improve their spatial plans, policies and regulations to keep up with population and urbanization trends in their cities/towns. The PLUPA has recommended such review of spatial plans every ten years, and Nairobi is ground zero for the need for completion of these spatial plans.

Most counties in Kenya have not published or revised their County Physical and Land Use Development Plans as envisioned by the PLUPA.[5] In Anami (Supra), the court noted that Nairobi needed to enact a proper Physical and Land Use Development Plan as the NIUPLAN, while providing useful guidance, did not cover the entire scope of such a plan as envisioned under Section 37 of the PLUPA.  That said, more counties are now cognizant of the need for comprehensive plans and are now in the process of preparing their Physical and Land Use Development Plans with some of them having undergone significant public participation processes and approvals by the various county assemblies.

Till now, county governments have largely operated on reactive instead of proactive urban planning. Attempting to plan sprawling developments after the fact leads to the current challenges many suburbs and growing urban areas are facing today. For instance, while some of the major highways such as the Thika Superhighway have been useful developments, the condition of some of the feeder roads in the smaller towns along such highways together with the difficulties in access to basic utilities by the populace illustrates the problem with public infrastructure following settlement in an area.

In an area like Athi River, the growing residential settlements in a town with significant industrial activity have led to health respiratory challenges for some of the residents. [6] Similarly, counties that historically had significant agricultural land like Kiambu face high demand for residential and commercial use from developers thus putting a strain on food production. The Kilimani area of Nairobi, which for decades primarily had low-density residential usage, now has significant high-density construction, placing strain on public infrastructure in the area.

Rapidly growing sub-counties in Nairobi, Kiambu, Machakos and Kajiado, for instance, can benefit from early public infrastructure planning as their populations in line with projected population growth for the next few years. One of the key focus areas should be zoning urban areas as there are competing uses in many different areas.

The above examples showcase the need for proactive urban planning in Kenya. Reactive urban planning is a fundamental reason why urban planning continues to be a challenge in Kenya.

Recommendations to stakeholders in the urban planning sector

Based on the above, these are some recommendations to county governments, urban planners, developers and other stakeholders in the land use planning field:

1. County governments should adhere to constitutional principles and national values under Articles 10 and 60 that among others require sustainable development, good governance, public participation and productive land use management;

• Completion/updating of county spatial plans, and where applicable, city spatial plans, to modernize and harmonize land use planning by counties in their areas of jurisdiction;

• Periodic review of zoning and spatial maps to accommodate emerging land use planning and population trends for sustainable and optimum use of land;

• Fidelity to existing spatial maps to minimize incidences of development approvals that flout existing county development plans on aspects such as floor plan ratios, maximum allowable height, and other applicable zoning restrictions; 

• Building capacity in the relevant county departments responsible for land use planning to promote robust land use planning that captures best practices in the local and international markets for sustainable planning that is both legally compliant as well as solution-oriented for major urban centers;

• The need for large-scale developers to incorporate public infrastructure considerations in their development plans for private sector contribution to sustainable urban planning; and

• Engagement of Environment and Social Governance (ESG) experts in long-term planning for development that accommodates the sustainability, inclusivity and social governance ethos provided under Article 10 of the Constitution of Kenya.

Conclusion

The land use planning challenges facing urban areas in Kenya call for consistent and proactive long-term planning and enforcement of existing plans. Updating the existing county zoning and spatial plans every ten years as required by the PLUPA is the first step toward solving the unplanned development across various parts of the country. Such coordination calls for both county and national government policy alignment to ensure that urban areas like Nairobi can reverse decades-old trends of unplanned and unsustainable development.

[1] Daily Nation : Kenya’s devastating floods expose decades of poor urban planning, bad land management < https://nation.africa/kenya/news/kenya-floods-expose-decades-of-poor-urban-planning-4615424> Accessed on 17^th June, 2025

[2] The Constitution of Kenya, 2010

[3] The Physical and Land Use Planning Act, Cap 303

[4] The County Governments Act of Kenya, Cap 265

[5] Section 36 (1) Physical Land Use Planning Act, Cap 303

[6] Gardy Chacha, “Toxic Air Keeps Athi River Residents on Edge” < https://www.standardmedia.co.ke/health/health-science/article/2001495154/toxic-air-keeps-athi-river-residents-on-edge> Accessed on 17^th June 2025