‘My hands are tied’: Sakaja blames laws for Illegal buildings

NAIROBI, Kenya Oct 13 – Nairobi Governor Johnson Sakaja says his administration’s efforts to rein in rogue developers are being frustrated by weak penalties, court battles and the loss of prosecutorial powers that previously allowed local authorities to enforce municipal by-laws.

Sakaja told senators on Tuesday that the county was spending considerable resources identifying illegal developments and issuing enforcement notices, only for some developers to continue with construction or challenge the notices in court.

Appearing before Senate Roads and Transportation Committee,the governor wants Parliament to review the legal framework governing development control, increase penalties for violations and give counties a greater role in prosecuting offences related to illegal construction.

“Because once you issue an enforcement notice, you can stop the project. Now that power was taken away. And so all the prosecution, or even county laws, or such related laws that are of a development nature, have to go to the office of the DPP,”Sakaja noted.

The governor said the current penalties were too low to deter developers undertaking high-value projects, with a fine of up to Sh500,000 and a maximum two-month jail term offering little incentive for some investors to comply with the law.

“A developer undertaking a project worth billions of shillings can afford to pay a Sh500,000 fine,” he expressed.

He said the county could issue enforcement notices and take action against developers who deviated from approved building plans, but its efforts were often undermined when cases reached court.

“We asked for special prosecutors to assist in prosecuting county offences, to review the charging guidelines and to help us enforce the law. That has never been responded to,”

“Now, where does that leave us? The county, we want to enforce the law. We are spending a lot of resources, manpower and time going to those places,”Sakaja stated.

Prosecutorial powers

Sakaja’s plea revives a long-running dispute over the role of county governments in prosecuting violations of their laws, following changes introduced under the Constitution of 2010 and the subsequent overhaul of the legal framework governing local authorities.

Before devolution, the repealed Local Government Act allowed local authorities to establish and maintain courts for enforcing municipal by-laws. It also empowered town clerks and other authorised officers to prosecute offences arising from those by-laws.

However, the County Governments Act repealed the Local Government Act, removing the statutory basis for counties to operate their own courts and exercise the former local-authority prosecutorial powers.

The Judiciary has maintained that the administration of justice is a national function and that county-related offences must be handled within the established court system, with prosecution powers vested in the Office of the Director of Public Prosecutions (ODPP).

The practical change in Nairobi became more pronounced in September 2023, when the Judiciary directed that county cases previously handled at City Hall be transferred to Milimani Law Courts from October 2 that year.

In a clarification issued at the time, Chief Registrar of the Judiciary Anne Amadi said counties no longer had the statutory mandate to establish courts to enforce their laws or retain fines collected from cases arising from county legislation.

The Judiciary said fines from the enforcement of county laws would be collected through the national court system and remitted to the National Treasury.

The transition prompted Nairobi officials to seek a framework for restoring the City Hall court’s operations. County officials argued that the transfer had affected the enforcement of municipal by-laws and deprived the county of revenue previously collected through fines.

In December 2023, county officials told the Nairobi County Assembly that the city had been losing millions of shillings following the transfer of cases to Milimani, renewing calls for a mechanism to bring the courts back to City Hall.

Sakaja’s latest appeal, however, focuses on the wider consequences of the legal changes for building control and public safety.

The governor said the county had repeatedly issued enforcement notices against developers who violated approved plans, including those who constructed additional floors beyond the authorised height or encroached on roads and drainage infrastructure.

He cited developments that had reduced the capacity of drainage systems and obstructed public spaces, saying some developers had begun removing offending structures after receiving notices.

He also recounted instances in which residents faced displacement or the loss of investments when buildings were found to have violated planning requirements, arguing that enforcement had to balance public safety with the need to protect people who had bought homes in good faith.

Sakaja said the county had been engaging residents’ associations and professional bodies in developing planning regulations to guide the city’s expansion and clarify the type and height of buildings permitted in different neighbourhoods.

But he maintained that planning rules would have little effect without the legal tools to ensure compliance.

Legal loopholes

The governor’s proposals drew questions from senators, who challenged him to explain why the county had not moved faster to address the legal loopholes and protect public infrastructure from encroachment.

Kitui Senator Enoch Wambua supported the need for a strategic partnership with the Senate but urged Sakaja to consider changes to provisions governing the regularisation of buildings.

Wambua questioned the proposed three-year period for developers to regularise certain developments, arguing that the time allowed was too long and that clear deadlines and consequences were necessary.

“For me, the three years that you are giving developers to regularise their developments is too long. Three years is too much,”

“Do public participation, get a reasonable time for them to regularise whatever needs to be regularised, and after that, there must be consequences. And soon,”the Kitui Senator stated.

He also raised concerns about exemptions affecting public land and properties involved in active legal disputes, warning that such provisions could create loopholes for developments that violated zoning and height restrictions.

Nominated Senator Peris Tobiko challenged the county to act more decisively against developers accused of encroaching on roads, drainage corridors and pedestrian walkways.

She questioned the argument that wealthy developers or those living outside the country were difficult to pursue, saying the county had a responsibility to protect public spaces regardless of who owned the offending properties.

“When you tell us that some of these developers, or the majority of these developers, are very rich people, that they are in Minnesota or wherever, and that they cannot be dealt with, then they will have their way,”Tobiko decried.

Tobiko also asked what specific measures Nairobi was taking to stop developments that obstructed drainage systems and reduced space available to pedestrians.

“If you tell us we cannot deal with these rich people, then why did we give you the power to speak for them, to work for them? Who will protect the common mwananchi from these unforeseen costs?”she posed.

Sakaja said the county was not relenting on enforcement but needed a stronger legal framework to ensure violations were dealt with effectively.

He also defended the need for clear development control regulations, saying Nairobi’s growth had to be guided by zoning rules, infrastructure capacity and access to essential services.

The governor said the city could not continue expanding without proper planning, warning that future population growth would place greater pressure on roads, drainage systems, schools, hospitals and other public facilities.

He urged senators to help establish a framework that would strengthen county enforcement powers, provide more effective penalties and ensure developers who violate approved plans are held accountable.

The debate comes amid renewed scrutiny of building safety and development control in Nairobi, where concerns over unauthorised construction, encroachment on public land and drainage infrastructure have intensified following building collapses and other safety incidents.

Sakaja maintained that the county needed the means to ensure that enforcement notices were not ignored and that violations could be pursued through to their legal conclusion.