Kilimani Project Submission on Regularization of Unauthorized Developments Bill, 2025

We commend the Nairobi City County Assembly for initiating the Nairobi City County Regularization of Unauthorised Developments Bill, 2025, which seeks to address the proliferation of unauthorised developments in Nairobi.

We welcome the opportunity to participate in the public consultation process and hereby submit our memorandum with recommendations to strengthen the Bill and ensure its alignment with national laws and sustainable urban development principles.

General Comments on the Bill

The Bill provides a framework for regularizing unauthorised developments while safeguarding public interest. However, we highlight the following fundamental concerns:

1. Alignment with National Laws

The Bill must be consistent with:
• The Constitution of Kenya (2010): Articles 42 (environment), 69 (sustainable development), and 70 (public participation)
• Physical and Land Use Planning Act (2019): Ensures compliance with zoning and safety standards
• Environmental Management and Coordination Act (EMCA): Protects against pollution and environmental degradation
• Land Act (2012): Clarifies ownership disputes and public land encroachment

Recommendation: Explicitly reference these laws in the Bill's provisions to avoid conflicts. The Bill must also resolve contradictions with the National Building Code and PLUPA's enforcement mechanisms to avoid legal challenges.

2. Definition of "Regularisation" (Section 2)

The current definition could reward developers who ignored or were denied permits.

Recommendation: Revise the definition to exclude developments previously denied for valid planning, safety, or environmental reasons. Regularisation should not incentivise deliberate non-compliance with existing laws.

3. Public Participation

While the Bill mandates public participation (Section 7), the 14-day notice period for submissions is insufficient.

Recommendation: Extend the public consultation period to 30 days and mandate community meetings in affected wards (e.g., Kilimani) to ensure meaningful input.

SPECIFIC RECOMMENDATIONS

4. Threshold for Eligibility (Section 3a – Objectives)

The Bill risks encouraging last-minute unauthorised construction.

Recommendation: Only developments that reached a substantial completion stage (e.g., superstructure stage) before the Bill's commencement should qualify. This prevents abuse by developers who hastily start projects to qualify.

5. Exclusion of Public Land (Section 14)

A rightful penalty-regularisation on public land, but enforcement mechanisms are unclear.

Recommendation: Establish a public database of all regularisation applications to ensure transparency and empower community associations to report violations.

6. Professional Endorsement (Section 9)

Requires clarity on qualified professionals.

Recommendation: Mandate that regularisation applications include certifications from Registered architects (BORAQS), Licensed engineers (EBK) and Physical planners (PPTEK). Penalise professionals who falsely certify compliance.

7. Conditional Regularisation (Section 17)

Overly broad discretionary powers.

Recommendation: Require all conditions imposed by the County to:
• Be based on independent technical reports;
• Align with Kilimani's zoning laws (e.g., height restrictions);
• Be publicly disclosed to ensure transparency.

Could shield unsafe structures.

8. Amnesty Clause (Section 18)

Recommendation: Limit amnesty to developments independently verified as safe. Publish a list of amnesty beneficiaries to deter fraud.

9. Register of Applications (Section 11)

Digitise and make the register publicly accessible.

Recommendation: Demand a real time online portal tracking all regularisation applications in Kilimani, including Application details, Professional certifications and Approval/rejection reasons.

10. Liability (Section 21)

Strengthen professional accountability.

Recommendation: Hold architects/engineers liable for unsafe designs, even after regularisation. Amend Section 21(b) to exclude gross negligence from harsh penalty.

11. Structural and Safety Compliance

Section 14(i) voids regularisation for unsafe structures but lacks clarity on enforcement.

Recommendation: Require independent certification by licensed engineers/architects for all applications, and penalise professionals who falsify safety reports.

12. Advisory Committee Composition (Section 22)

It includes technical experts but misses community representatives.

Recommendation: Include one (1) representative from registered neighbourhood associations in the Committee.

13. Fundamental Legal and Policy Concerns

In addition to the recommendations above, KPF wishes to highlight the following serious contradictions and fundamental concerns:

Construction with National Building Codes

The Bill risks compromising safety by allowing developments that bypassed national safety and construction standards. Rewarding non-compliance sets a dangerous precedent that undermines Kenya's entire building regulatory framework.

Recommendation: Explicitly exclude developments violating the National Building Code or other safety laws from eligibility.

Sanitizing Unlawful Developments

The Bill effectively rewards violations of existing laws by retrospectively validating developments that ignored due process, environmental safeguards, and community input. As public trustees, County Governments should not legitimise unlawful actions.

Recommendation: Require blanket regularisation; require case-by-case reviews with proof of community consultation and documented impact assessments.

Inconsistency with the Physical and Land Use Planning Act (PLUPA), 2019

The Bill contradicts PLUPA's structured approval process, which mandates stakeholder engagement, environmental assessments, and alignment with development plans. Creating a "backdoor" for poor fana approach undermines national legislation.

Recommendation: Amend the Bill to require full PLUPA compliance (e.g., public hearings, EIA certifications) and stricter penalties.

Erosion of Planning Enforcement

The proposed process removes incentives for compliance and signals that developers can build first, seek forgiveness later. This will overwhelm urban plans and strain infrastructure.

Recommendation: Impose harsh penalties (e.g., fines, blacklisting) for future violations to deter circumvention of the law.

Kilimani-Specific Concerns:

Kilimani faces unique challenges due to high-density developments and encroachment on public utilities.

We propose:
• Height restrictions for developments not complying with zoning laws
• Expedited demolition of non-compliant structures (Section 19) with clear timelines
• Community awareness programs on the regularisation process

Conclusion

Kilimani Project Foundation (KPF) supports the Bill's intent but urges amendments to ensure:
• Compliance with national safety laws and infrastructure
• Enhanced public participation
• Alignment with national laws on environment and planning

We request that the County Assembly address these fundamental conflicts to ensure the Bill strengthens rather than weakens Nairobi's urban governance and consider these recommendations for a more inclusive and effective law.

Yours faithfully,

For and on behalf of all who live, work and play in the Kilimani Ward

Peter Kirimi
EXECUTIVE DIRECTOR
Kilimani Project Foundation
+254110086180