The Supreme Court has criticised the use of Google Maps to establish property locations in a Nairobi zoning dispute, ruling that questions involving land boundaries, zoning classifications and permissible building heights require expert evidence.
The case arose from disagreements over high-rise developments along Rhapta Road in Nairobi, where courts were required to determine whether the affected properties fell under Zone 4 or Zone 3C, classifications that prescribe different limits for building heights.
The apex court upheld the Court of Appeal’s criticism of the Environment and Land Court for relying on Google Maps to classify the properties without obtaining expert evidence from a licensed surveyor to establish their exact locations and boundaries.
“Reliance on Google Maps in the face of contested boundaries, without calling for expert surveyor’s evidence, was a methodological misstep,” the Court of Appeal had observed, a position subsequently endorsed by the Supreme Court.
The judges emphasised that zoning decisions and development restrictions are technical matters governed by legislation and formally approved planning documents, rather than geographical assumptions.
“Zoning classifications are not a matter of impressionistic geography but of statutory instruments and gazetted plans,” the court cited from the appellate ruling.
Dispute over building heights
In January 2025, the Environment and Land Court classified the disputed properties along Rhapta Road as falling within Zone 4, restricting the affected developments to a maximum of 16 floors.
The Court of Appeal later overturned that decision, placing the properties in Zone 3C and allowing buildings of up to 20 floors under Nairobi City County’s 2021 Development Control Policy.
However, the Supreme Court found that both lower courts had erred by relying on the 2021 policy, which had neither received approval from the Nairobi County Assembly nor been gazetted as required for it to acquire binding legal force.
The judges ruled that the absence of an approved planning framework did not permit courts to treat a draft policy as law or assume responsibilities that belong to planning authorities.
The court further rejected the argument that the legal principle that “the law abhors a vacuum” could justify elevating an unapproved draft policy into binding legislation.
Nairobi’s planning regulations under scrutiny
The ruling highlights gaps in Nairobi’s development control framework, with county authorities having relied on the draft 2021 policy to guide development approvals despite its lack of formal legal status.
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According to the Supreme Court, the absence of a planning instrument approved by the County Assembly had effectively constrained the county’s ability to assess development applications on their merits.
The judges also distinguished the Nairobi Integrated Urban Development Master Plan (NIUPLAN), adopted in 2016, from the detailed zoning regulations required under the Physical and Land Use Planning Act.
While NIUPLAN provides a broad framework for the city’s development, it does not contain the parcel-specific zoning classifications necessary to establish permissible building heights for individual properties.
The decision places renewed attention on the legal foundation for construction approvals in Nairobi, where high-rise developments have expanded amid concerns over urban density, infrastructure capacity and neighbourhood planning.
However, the Supreme Court did not order the demolition of the disputed buildings or introduce a blanket ban on high-rise construction. It partly allowed the appeal only on the issue of the lower courts’ reliance on the unapproved 2021 policy, dismissing the remaining grounds.
