SECURING BUILDING APPROVALS IN KENYA

Property & Real Estate: series 5

In Kenya, the construction industry is strictly governed by a multi-layered regulatory framework designed to ensure structural integrity, public safety, and sustainable urban development. For developers and investors, securing building approvals is not merely a bureaucratic hurdle but a legal imperative. Failure to comply can lead to enforcement notices, demolition of structures, and heavy financial penalties. This process is primarily anchored in the Physical and Land Use Planning Act (PLUPA), 2019, the National Construction Authority (NCA) Act, and the Environmental Management and Co-ordination Act (EMCA).

Physical and Land Use Planning Act

The primary authority for development control in Kenya lies with the County Governments. Under Section 57(1) of the Physical and Land Use Planning Act, 2019, any person who intends to carry out development within a county must apply for a development permission (building permit) from the respective County Executive Committee Member. The Act defines “development” broadly to include the making of any material change in the use or appearance of any structure or land.

The application process requires the submission of detailed architectural and structural plans, Proof of land ownership (title deed or lease agreement), a land rates clearance certificate, a change of user approval, if applicable, a development permission (PPA2) form and an Environmental Impact Assessment (EIA) license from NEMA where necessary. Under Section 58, the County Government must consider the impact of the development on the surrounding environment and infrastructure. A crucial legal nuance is found in Section 57(2), which stipulates that any person who commences development without obtaining the necessary permission commits an offence and is liable to a fine not exceeding Ksh. 500,000.00 or to imprisonment for a term not exceeding two (2) months or to both. Furthermore, the County has the power to issue an enforcement notice under Section 72, requiring the developer to rectify non-compliance or restore the land to its original condition, which often translates to a demolition order.

The Role of NEMA

Before a physical stone is laid, most significant construction projects must undergo an Environmental Impact Assessment (EIA). This is governed by Section 58 of the Environmental Management and Co-ordination Act (EMCA), Cap 387. The developer is required to submit a project report to the National Environment Management Authority (NEMA).

If NEMA determines that the project will have a significant impact on the environment, a full EIA study is commissioned. Upon satisfaction that the development is sustainable, NEMA issues an EIA License. Legally, a building permit from the County Government remains “dormant” or incomplete until the NEMA license is secured. Operating without this license is a violation of the Environmental Management and Co-ordination (Impact Assessment and Audit) Regulations, 2003, and can lead to immediate stop-work orders.

Construction Standards and the National Construction Authority (NCA)

Once the County and NEMA have cleared the plans, the developer must ensure the Contractor responsible for the project is registered with the National Construction Authority (NCA) under the National Construction Authority Act, 2011. Section 15 of this Act requires all Contractors of any construction projects to be registered with NCA before commencement of the project.

The NCA serves as the industry’s technical “policeman.” To secure an NCA compliance certificate, the developer must prove that the project is being handled by a registered contractor and that a qualified project manager is on-site. Under Section 23, NCA officers have the power to enter any construction site to inspect for compliance with safety standards and the building code. If a site lacks an NCA compliance board or fails to meet the safety standards prescribed in the National Construction Authority Regulations, 2014, the authority can suspend the works and bar the contractor from future projects.

Occupational Safety and Public Health Compliance

The Public Health Act (Cap 242) and the Occupational Safety and Health Act (OSHA), 2007 add another layer of compliance. Under Section 126 of the Public Health Act, local authorities (County Governments) are empowered to make by-laws regarding the construction of buildings to ensure proper drainage, ventilation, and sanitation. Furthermore, Section 44 of OSHA requires that any workplace (which includes a construction site) must be registered with the Director of Occupational Safety and Health Services (DOSHS). This ensures that the welfare of the workers is protected through proper safety measures, such as the provision of Personal Protective Equipment (PPE) and the appointment of a safety officer on-site.

The Building Code and Structural Integrity

While the Physical and Land Use Planning Act (PLUPA), 2019 handles the planning aspect, the technical specifications of the building are governed by the National Building Code, 2024 which replaced the Building Code (The Local Government (Adoptive By-Laws) (Building) Order, 1968). This Code sets out the “Building Standards” regarding materials to be used, the thickness of walls, and the strength of foundations.

For high-rise buildings, the developer must submit structural engineering drawings signed by a professional engineer registered under the Engineers Act, 2011. These drawings are scrutinized to ensure they meet the Kenyan standards for structural stability. Upon completion of the building, the County Government conducts a final inspection to issue a Certificate of Occupation under the Physical Planning (Building) Regulations. Without this certificate, the building is legally considered “unfit for human habitation,” and it is illegal for utilities like water and electricity to be permanently connected.

Conclusion

Securing building approvals in Kenya is a sequential and integrated process that requires the coordination of various professionals’ architects, engineers, and environmental consultants. For a developer, the legal journey begins with the County Planning Department and ends with the issuance of an Occupation Certificate. In an era of increasing urban density, adhering to these specific sections of the law is the only way to ensure that a development is not only profitable but also safe, legal, and environmentally sound.

For more information or assistance in building and construction approvals in Kenya, please contact us on info@aowangaadvocates.com or +254794600191

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