Last Updated April 30, 2019

Law and Practice

Contributed By MMC Africa Law

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MMC Africa Law was established in 1995 and is headquartered in Spring Valley, Nairobi, with a full-service office in the coastal city of Mombasa. The firm is made up of 12 Partners and over 30 lawyers with expertise in a wide variety of legal matters. As well as being a member of ALFA International, a global network of independent law firms, it has a close association with the leading global law firm of Orrick, Herrington & Sutcliff LLP. MMC Africa Law’s dedicated real estate team comprises three partners and 12 lawyers who pride themselves on their extensive experience handling sophisticated and complex transactions such as those relating to mixed-use developments, an emerging market in real estate. The team also offers specialised services in urban regeneration projects, construction law, REITs, hospitality and hotels, residential developments, commercial and farmland leases, land use and planning, environmental compliance, contractual agreements, conveyancing and conducting due diligence on property.

Planning in Kenya is undertaken by both the national and the county governments. The national government is responsible for formulation of the laws while the implementation of the laws is undertaken by the counties.

Each county has a legislative framework which is based on the national laws that impose planning and zoning controls. The county planning laws apply to all sub-counties within a county.

Part XI of the County Governments Act requires county planning frameworks to integrate economic, physical, social, environmental, and spatial planning.

The PPA is the main statute dealing with physical development in Kenya, and vests the functions of Physical Planning in the Office of the Director of Physical Planning.

The PPA establishes physical planning liaison committees whose functions are to act as a mechanism for appealing decisions of the Director of Physical Planning.

Under the PPA, a number of regulations have been enacted to deal with various aspects of physical development. These are the Physical Planning:

  • (Building and Development) (Control) Rules, 1998;
  • (Development Plans) Regulations, 1998;
  • (Application for Development Permission) Regulations, 1998;
  • Order of 1998;
  • (Subdivision) Regulations, 1998; and
  • (Appeals to the Physical Planning Liaison Committee) Regulations, 1998.

There is currently a Physical Planning Bill that seeks to amend the PPA. This Bill seeks to provide separation of powers between the national and the county governments. The Bill provides that policy and strategy formulation including the preparation and approval of the National Physical Development Plan are functions of national government while the power to consider and give development approval is vested in the county governments.

The NCA Act establishes the NCA which is mandated with overseeing and co-ordinating the development of the construction industry in Kenya. Every construction project is required to be registered with NCA prior to commencement of a project.

County governments are empowered to regulate the use and development of land in the interests of proper and orderly development. The applicable legislation is the PPA and the county bylaws.

Section 30 of the PPA makes it an offence to carry out development within a county without a development permission granted by the county government.

Section 31 of the PPA provides that any person requiring a development permission has to make an application to the relevant county accompanied by such plans and particulars as are necessary to indicate the purposes of the development.

The county when considering a development application submitted to it may consult with various officers including but not limited to the Director of Survey, NLC and the Chief Engineer (Roads).

The county may then either grant the applicant a development permission with or without conditions or refuse to grant the permission stating the grounds of refusal.

Third parties will only have an opportunity to object during public participation that is required before an Environment Impact Assessment licence can be issued.

Any person who is aggrieved by the decision of the county may appeal against the decision to the relevant liaison committee.

Any person aggrieved by a decision of the liaison committee may appeal to the National Liaison Committee.

An appeal against a decision of the National Liaison Committee may be made to the High Court in accordance with the High Court rules of procedure.

Large development projects will require the developer to enter into agreements with government agencies or suppliers for the provision of certain services. These include agreements with the county governments for provision of sewerage services, with the Kenya Power and Lighting Company for provision of electricity and with the road authorities for the construction of access roads to the development.

The approval for development, once granted, will contain certain conditions to be adhered to. When the county discovers that a development has been or is being carried out without the required permission or that any of the conditions of a permission have not been complied with, the county may serve an enforcement notice on the developer.

Unless an appeal has been lodged over the enforcement notice, the enforcement notice shall take effect after the expiration of the notice period.

If a person is aggrieved by the notice then he or she may, within the notice period, appeal to the relevant liaison committee.

Any person who is aggrieved by a decision of the liaison committee may appeal against its decision to the National Liaison Committee.

An appeal against a decision of the National Liaison Committee can be made to the High Court.

MMC Afica Law

MMC Arches,
Spring Valley Crescent,
Off Peponi Rd.
Westlands

+254 020 2329898

+254 720 585 785

eomulele@wakili.com www.wakili.com
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MMC Africa Law was established in 1995 and is headquartered in Spring Valley, Nairobi, with a full-service office in the coastal city of Mombasa. The firm is made up of 12 Partners and over 30 lawyers with expertise in a wide variety of legal matters. As well as being a member of ALFA International, a global network of independent law firms, it has a close association with the leading global law firm of Orrick, Herrington & Sutcliff LLP. MMC Africa Law’s dedicated real estate team comprises three partners and 12 lawyers who pride themselves on their extensive experience handling sophisticated and complex transactions such as those relating to mixed-use developments, an emerging market in real estate. The team also offers specialised services in urban regeneration projects, construction law, REITs, hospitality and hotels, residential developments, commercial and farmland leases, land use and planning, environmental compliance, contractual agreements, conveyancing and conducting due diligence on property.

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