Court of Appeal Clarifies Zoning and Development Rights: A Case analysis of Civil Appeal No. E160 of 2025: Claire Kubochi Anami & Others (Suing as Officials of Rhapta Road Residents Association) v County Executive Committee Member, Built Environment & Urban Planning, Nairobi City County & 19 Others

Executive Summary

On 19 September 2025, the Court of Appeal of Kenya issued a landmark judgment that has significantly reshaped the legal and regulatory environment for urban development in Nairobi. The case concerned the legality of high-rise developments along Rhapta Road in Westlands, with wide-ranging implications for zoning, planning instruments, and the statutory duties of Nairobi City County under Kenyan law.

The Court's ruling clarified the zoning status of Rhapta Road, upheld developers’ rights to proceed with high-rise projects (up to 20 floors), and issued a structural interdict compelling Nairobi City County to finalize and gazette lawful zoning plans. The case exposed critical failings in urban governance and has prompted judicially mandated reform within a strict six-month timeline.

The judgment provides much-needed certainty to investors and developers navigating the Nairobi real estate market.

The Case: A Much-Needed Clarification

The Court of Appeal directly confronted the "structural governance gap" that has undermined lawful urban planning in Nairobi. The judgment is notable not only for its substantive outcomes, but also for the judicial remedies applied—in particular, the use of a structural interdict, a rare but powerful constitutional tool.

Key Takeaways from the Judgment

1. Recognition of a Structural Governance Failure

• The Court acknowledged that Nairobi has no properly gazetted zoning frameworks under the Physical and Land Use Planning Act (PLUPA), 2019.
• The 2004 Zoning Guidelines were declared legally obsolete, having never been formalised under current statutory procedures.
• This has created a legal vacuum that enables discretionary, inconsistent decision-making, violating the rule of law and principles of sustainable urban development.

2. Application of a Structural Interdict

• Recognising that ordinary declaratory or injunctive relief would be insufficient, the Court issued a structural interdict — a supervisory constitutional remedy designed to address systemic violations.
• This interdict compels Nairobi City County to take specific legal and administrative actions, within a judicially supervised timeframe, to cure the ongoing illegality.
• This reflects evolving Kenyan jurisprudence aligned with Article 10, Article 174, and Article 43 of the Constitution, and draws from international best practices in urban governance and intergenerational equity.

3. Zoning Clarification – Rhapta Road is Zone 3C

• The Court partially allowed the developers’ cross-appeal, correcting the trial court’s misclassification of Rhapta Road.
• It affirmed that Rhapta Road is located within Zone 3C, as defined under the 2021 Nairobi Development Control Policy.
• Consequently, the maximum permitted height for developments along Rhapta Road has been increased from 16 floors (as previously assumed) to 20 floors, subject to infrastructure and environmental compliance.

4. Mandates Issued to Nairobi City County

Under the structural interdict, the Court issued a binding directive to Nairobi City County, including the following orders:

a. Gazette Lawful Zoning and Planning Instruments

• The County must complete, adopt (via County Assembly), and gazette a comprehensive Local Physical and Land Use Development Plan, in compliance with Sections 44–58 of PLUPA, 2019.
• Deadline: Six (6) months from the date of the judgment.

b. Conduct Meaningful Public Participation

• All planning processes must include genuine public participation, as mandated under Article 10 and Article 69(1)(d) of the Constitution, and Section 5 of PLUPA.

c. File Periodic Compliance Reports

• A progress report must be filed with the Court within three (3) months, and a final compliance report within six (6) months, allowing the judiciary to maintain oversight.

Legal Status of Existing and Pending Approvals

Pending formalisation of the zoning frameworks, the Court issued practical guidance to protect investment certainty and legal continuity:

• Valid Existing Approvals: All lawfully issued development approvals and NEMA licences already acted upon remain valid and enforceable. There will be no retroactive invalidation or demolition.
• Pending Applications: These will be assessed under PLUPA 2019 and its regulations, guided by the 2021 Development Control Policy, pending its formal approval and gazettement.

Implications for Developers, Investors, and Urban Planners

✅ Greater Legal Certainty

• The decision provides developers with clear zoning status and legal justification to proceed with 20-floor developments in Zone 3C, eliminating long-standing ambiguity.

✅ Protection of Existing Investments

• The Court has safeguarded the rights of investors who have acted in good faith under lawfully issued approvals, reinforcing protections under Article 40 (Right to Property) of the Constitution.

✅ Judicial Supervision of Urban Planning Reform

• For the first time, the Court has issued a time-bound, enforceable mandate on Nairobi City County to undertake systemic planning reform, supported by judicial supervision.

✅ Opportunity for Stakeholder Engagement

• Developers, landowners, and community groups now have a critical window to engage in the formulation of Nairobi's new zoning and land use policies.

✅ Policy Reform Aligned with Global Standards

• The judgment reflects international best practices in sustainable urban planning and urban rule of law, consistent with UN-Habitat, ICLEI, and OECD guidelines.

Conclusion

The Court of Appeal’s decision in Civil Appeal No. E160 of 2025 is a transformational moment in Kenya’s urban law. It confirms that Nairobi’s development must be guided by law, not discretion, and lays the groundwork for modern, enforceable, and inclusive zoning policies.

By confirming developers' rights, protecting lawful approvals, and ordering time-bound governance reforms, the Court has restored legal certainty, predictability, and public accountability in one of Africa’s fastest-growing cities.

We remain at the forefront of advising clients on strategic development planning, regulatory compliance, and urban land use litigation in Kenya.

 Disclaimer: This article is for informational purposes only and does not constitute legal advice.

On reinforcing the centrality of transparency, equality, and legal compliance in succession matters: The Case of Njenga Mwaura Ngoima v Phoebe Wambeti & Another (Civil Appeal E455 of 2023 [2025] KECA 1477 (KLR)

Full Case: Njenga Mwaura Ngoima v Phoebe Wambeti & Another (Civil Appeal E455 of 2023 [2025] KECA 1477 (KLR)

I. INTRODUCTION

This legal opinion analyzes the decision of the Court of Appeal in the above-captioned case involving succession to the estate of the late Geofrey Mwaura Ngoima, who died intestate in 1984. The appeal arose from a High Court decision that revoked a confirmed grant of letters of administration on grounds of concealment, material non-disclosure, and procedural defects under the Law of Succession Act (Cap 160 Laws of Kenya).

 

II. FACTUAL BACKGROUND

1. The deceased passed away on 21 October 1984.
2. In 1999, two sons (Njenga Mwaura Ngoima and Geoffrey Kangethe Ngoima) petitioned for letters of administration, listing only select family members.
3. The grant was confirmed in December 2000 with a specific mode of distribution.
4. In 2005 and 2015, two daughters (Phoebe Wambeti and Edith Waithera) challenged the grant, seeking revocation based on:
• Omission of beneficiaries;
• Alleged oral will;
• Threats of eviction and inequitable distribution.

III. LEGAL ISSUES

The Court of Appeal considered several legal and procedural questions:

1. Whether the confirmed grant was properly revoked under Section 76 of the Law of Succession Act.
2. Whether the deceased had a valid oral will meeting the statutory requirements.
3. Whether intestacy law under Section 38 was applicable.
4. Whether omission of the daughters constituted fraudulent concealment.
5. Whether allegations of latent bias and procedural unfairness affected the fairness of proceedings.

IV. LEGAL FRAMEWORK

Key legal provisions invoked:

• Section 76, Law of Succession Act: Grounds for revocation of grant (fraud, concealment, procedural defect).
• Section 51, Law of Succession Act: Requirement to list all surviving beneficiaries.
• Section 38, Law of Succession Act: Equal distribution in cases of intestacy.
• Sections 9 & 10, Law of Succession Act: Formal requirements for oral wills (must have two competent independent witnesses).
• Article 27, Constitution of Kenya: Equality and non-discrimination.
• Article 60, Constitution of Kenya: Equitable access and rights to land.

V. ANALYSIS OF JUDICIAL FINDINGS

1. Revocation of the Grant (Section 76 LSA)

• The High Court and Court of Appeal agreed that the omission of five daughters from the petition constituted material non-disclosure and concealment.
• The petition was defective in substance, warranting revocation under Section 76.
• The long lapse of time (over 20 years) did not preclude revocation, as no statutory limitation applies where fraud or concealment is shown.

2. Oral Will Claim

• The claim of an oral will was rejected for lack of statutory compliance:
• The petitioners initially applied under intestacy, contradicting the existence of a will.
• No competent independent witnesses were produced as required under Sections 9 and 10 of the Act.
• No sufficient evidence substantiated the alleged oral instructions of the deceased.

3. Applicability of Intestacy Law

• Having found the will invalid, the Court upheld the application of Section 38, affirming equal distribution among all children, regardless of gender or marital status.
• The Court emphasized that statutory succession law overrides customary norms in intestate matters.

4. Procedural Fairness and Bias Allegation

• The appellant's claim of latent bias (based on a prior relationship between judge and counsel) was found to be unsubstantiated.
• The issue had not been raised at the trial court, and no evidence of actual bias was shown.
• The Court also held that delay in filing objections (in 2005 and 2015) was not fatal to the respondents' case.

VI. STRENGTHS AND WEAKNESSES OF ARGUMENTS

Appellant’s Position:

• Weaknesses:
• Failed to meet evidentiary burden on oral will.
• Did not disclose the will in the original petition, undermining credibility.
• Allegations of bias were procedurally defective and lacked merit.
• Lacked legal grounding for claiming that equitable distribution had occurred via consent.

Respondents’ Position:

• Strengths:
• Properly invoked Section 76 with clear evidence of omission of beneficiaries.
• Demonstrated violation of Section 51 and constitutional principles of equality.
• Provided corroborated evidence of exclusion from the process.

VII. DOCTRINAL AND PRACTICAL IMPLICATIONS

1. Revocation Power is Ever-Present: Courts may revoke grants at any time if fraud, concealment, or defect is shown—time delay is not fatal.
2. Strict Compliance with Oral Will Provisions: Oral wills are disfavored unless statutory requirements are meticulously met.
3. Customary Practices Do Not Trump Statute: Gender-based exclusions, even if culturally sanctioned, are invalid under statutory and constitutional law.
4. Equality Under Article 27: Succession laws are to be interpreted and enforced in line with constitutional values of equality and non-discrimination.
5. Transparency Obligations in Succession Petitions: All children must be disclosed—failure to do so exposes administrators to revocation and even civil liability.

VIII. CONCLUSION AND OPINION

In light of the above:

• The High Court's decision to revoke the grant was correct and within the law.
• The Court of Appeal properly dismissed the appeal, reinforcing the centrality of transparency, equality, and legal compliance in succession matters.
• The case underscores the need for personal representatives to act honestly, inclusively, and in accordance with statutory requirements.
• All children of the deceased—sons and daughters, married or not—have equal rights to inherit under Kenyan law.

IX. RECOMMENDATIONS

1. Practitioners should advise clients that:
• Succession petitions must disclose all beneficiaries.
• Alleged oral wills are subject to strict proof.
2. Judiciary may consider encouraging mediation in succession disputes to avoid decades-long litigation and family division.
3. Legislators or judicial training bodies may wish to clarify the scope of Section 76 further in relation to timing and acceptable delays.

The doctrine of adverse possession in Kenya

In Kenya, the doctrine of adverse possession is a legal concept that often sparks intense disputes, particularly in matters of land ownership. This doctrine, which allows a person to claim legal ownership of land after long, uninterrupted occupation, challenges the traditional view that formal title ownership is absolute. It highlights the law's recognition that possession, under certain circumstances, can override title ownership. The doctrine is rooted in public policy that encourages land use and discourages abandonment or neglect of land resources.

What Is Adverse Possession?

Adverse possession occurs when an individual, not the legal owner, occupies land in a manner that is open, continuous, and exclusive without the consent of the rightful owner. In Kenya, after a statutory period of 12 years, the person in possession may acquire legal ownership of the land.

Under the doctrine, a claimant can gain legal ownership through uninterrupted occupation of the land for at least 12 years. This period starts when the claimant begins occupying the land without the registered owner’s permission.

To successfully claim adverse possession, the claimant must demonstrate that their use of the land was continuous, exclusive, non-permissive, and open, in accordance with the Latin principle nec vi, nec clam, nec precario (meaning "No force, no secrecy, no permission"). Essentially, the occupation must be public, without the owner’s consent, and without the use of force or deception.

This legal principle seeks to balance the need for certainty in land ownership with the need to discourage landowners from neglecting their properties, thereby ensuring that land is put to productive use.

Legal Basis for Adverse Possession in Kenya

The primary legal foundation for adverse possession in Kenya is found in the Limitation of Actions Act (Cap. 22), specifically:

• Section 7: A person cannot bring a lawsuit to recover land after twelve years from when the right to sue arose.
• Section 38(1): A person who has gained land through adverse possession may apply to the High Court to be registered as the owner, replacing the registered proprietor.

The Land Registration Act, 2012, further governs the process of registering ownership once a successful adverse possession claim has been established. It’s important to note that while adverse possession can override title, formal registration procedures must still be followed to finalize ownership.

Key Elements of Adverse Possession

To successfully claim adverse possession, the claimant must satisfy several strict criteria:

1. Actual Possession: The claimant must physically occupy the land. This can include activities like building, farming, or residing on the land.
2. Continuous and Uninterrupted Possession: The claimant must occupy the land for a continuous period of at least 12 years without the landowner intervening to reclaim possession. Any attempt by the landowner to evict the claimant during this period disrupts the claim.
3. Open and Notorious Possession: The occupation must be obvious and well-known, meaning that the true owner should be aware (or should have reasonably been aware) that someone is occupying their land.
4. Exclusive Possession: The land must be occupied solely by the claimant, excluding the true owner and the general public. Shared occupation weakens the claim.
5. Non-Permissive and Peaceful Possession: The claimant must occupy the land without permission from the true owner. The occupation must also be peaceful and not involve force or threats.
6. Intention to Possess (Animus Possidendi): The claimant must demonstrate an intent to possess the land as their own, such as by building structures, fencing the land, or cultivating crops.

Who Can Claim Adverse Possession?

Any person, including squatters, licensees whose terms have expired, or even neighbours who have encroached on a boundary, can claim adverse possession, provided they meet the legal requirements. However, a tenant or licensee cannot claim adverse possession while still occupying the land with the owner’s consent, unless they continue to occupy it without consent after their tenancy or license expires.

How to Make a Claim

To formally initiate a claim of adverse possession, the applicant must file a suit in the Environment and Land Court (ELC) under Order 37 Rule 7 of the Civil Procedure Rules (2010). The application should include:

• A supporting affidavit detailing the facts of possession.
• A copy of the title deed for the land.
• Evidence showing continuous occupation for at least 12 years.

The landowner (respondent) will be notified and given the opportunity to contest the claim. If the court finds that the claimant has met the statutory requirements, it may order the claimant to be registered as the new owner, effectively extinguishing the previous title.

Defences Against Adverse Possession

A landowner can defeat a claim by showing:

• They initiated legal action to recover the land before the 12-year period expired.
• The claimant was occupying the land with permission, such as a tenant or licensee.
• The claimant’s occupation was not continuous or exclusive.
• The occupation was conducted secretly or without the owner's knowledge.

Important Limitations and Clarifications

• The 12-year period may be reset if the landowner takes legal action or attempts to regain possession within this period.
• Land owned by the government or held in trust (e.g., public land, forest reserves, or road reserves) cannot be claimed under adverse possession.
• A co-owner cannot claim adverse possession against another co-owner unless they have ousted the other from possession.

Practical Advice for Landowners and Possessors

For Landowners:

• Regularly inspect and use your property.
• Address encroachments by issuing written notices or renew permissions as necessary.
• Take swift legal action if you discover someone occupying your land without consent.

For Possessors:

• Keep records of your possession, such as photographs, utility bills, and evidence of improvements made to the land.
• Consult a lawyer to assess if the 12-year period has been met.
• Avoid occupying land without clear ownership, as this could undermine any claim to adverse possession.

Conclusion

Adverse possession in Kenya is a powerful legal tool that can transfer land ownership to a long-term occupant if the conditions are met. However, anyone seeking to claim ownership through this doctrine must strictly follow legal requirements and procedures. Landowners, on the other hand, must be proactive in protecting their rights to avoid losing ownership due to inaction. The courts require clear and convincing evidence before granting such a significant remedy.

  Disclaimer: This article is intended for general information purposes only and should not be construed as legal advice.