Nairobi Governor Sakaja: Seeks Stronger Building Law Enforcement Powers

• Nairobi Governor Johnson Sakaja states his administration's efforts against illegal construction are hindered by weak penalties, court battles, and the loss of prosecutorial powers.
• He has requested Parliament to review development control laws, increase penalties, and grant counties more authority in prosecuting construction offenses.
• Historically, local authorities had their own courts and prosecutorial powers, which were removed when the Local Government Act was repealed by the County Governments Act.
• In September 2023, the Judiciary directed that all county cases be transferred from City Hall to Milimani Law Courts, effective October 2, 2023.
• This transfer has resulted in Nairobi County losing millions of shillings in fines, as all such revenue is now remitted to the National Treasury.

The ongoing dispute over the scope of county governments' powers in prosecuting violations of their own laws, particularly in the realm of building control, underscores a critical challenge for urban development and governance in Kenya.

Nairobi Governor Johnson Sakaja recently voiced significant concerns regarding his administration's capacity to curb unauthorized construction within the county. Appearing before the Senate Roads and Transportation Committee on an unspecified Tuesday, Governor Sakaja highlighted that efforts to control "rogue developers" are severely hampered by insufficient penalties, ongoing legal disputes, and the withdrawal of prosecutorial authority previously held by local government bodies. He explained that despite the county dedicating substantial resources to identify unlawful developments and issue enforcement notices, many developers either proceed with construction or challenge these notices in court, effectively circumventing regulations.

Governor Sakaja specifically appealed to Parliament for legislative intervention. He urged lawmakers to undertake a comprehensive review of the existing legal framework governing development control. Furthermore, he advocated for a substantial increase in the penalties imposed for violations and a greater empowerment of county governments in the prosecution of offenses related to illegal construction. Sakaja emphasized that the power to halt projects immediately after issuing an enforcement notice has been removed, necessitating that all prosecutions, including those stemming from county laws of a developmental nature, be routed through the Office of the Director of Public Prosecutions (ODPP). He also pointed out the inadequacy of current fines, which cap at Sh500,000 alongside a maximum two-month jail term, arguing that these amounts offer little deterrent to developers engaged in multi-billion shilling projects. The county's request for dedicated special prosecutors to assist in handling county offenses, review charging guidelines, and bolster law enforcement has, according to Sakaja, remained unaddressed.

The challenges articulated by Governor Sakaja are rooted in a broader historical and legal transformation concerning local governance in Kenya. Prior to the advent of devolution, the now-repealed Local Government Act provided a clear framework, enabling local authorities to establish and maintain their own courts for the enforcement of municipal by-laws. This legislation also explicitly granted town clerks and other designated officers the authority to prosecute offenses arising from these by-laws, ensuring direct and localized enforcement capabilities.

However, the enactment of the County Governments Act significantly altered this landscape by repealing the Local Government Act. This legislative change effectively dismantled the statutory foundation that allowed counties to operate their own judicial bodies and exercise the prosecutorial powers previously held by local authorities. The national Judiciary has consistently maintained that the administration of justice falls under its national purview. Consequently, all offenses related to county matters are now required to be processed within the established national court system, with the Office of the Director of Public Prosecutions (ODPP) holding the exclusive mandate for prosecution.

The practical implications of this jurisdictional shift became particularly evident in September 2023. At that time, the Judiciary issued a directive mandating the transfer of all county cases, which had historically been heard at City Hall, to the Milimani Law Courts, effective October 2 of the same year. This move was further clarified by Chief Registrar of the Judiciary Anne Amadi, who stated that counties no longer possess the legal authority to establish their own courts for enforcing local laws or to retain the fines collected from cases originating from county legislation.

Under the new arrangement, all fines resulting from the enforcement of county laws are now collected through the national court system and subsequently remitted to the National Treasury. This change has had a direct and significant financial impact on Nairobi County. In December 2023, county officials informed the Nairobi County Assembly that the city had incurred losses amounting to millions of shillings following the transfer of these cases. This substantial revenue loss, coupled with the perceived weakening of enforcement mechanisms, has prompted Nairobi officials to actively seek a framework that would allow for the restoration of operations at the City Hall court, aiming to regain both enforcement efficacy and financial autonomy.

The ongoing dispute over the scope of county governments' powers in prosecuting violations of their own laws, particularly in the realm of building control, underscores a critical challenge for urban development and governance in Kenya. Governor Sakaja's frustrations highlight how the current legal and operational framework impedes Nairobi County's ability to effectively manage and regulate construction activities. The combination of limited prosecutorial powers, the transfer of cases to national courts, and the perceived inadequacy of penalties creates an environment where illegal construction can persist with reduced deterrence.

This situation not only strains county resources but also raises questions about the efficacy of local enforcement mechanisms in a devolved system. The shift in jurisdiction and revenue collection away from the county directly impacts its capacity to fund and execute its mandate, including the crucial task of ensuring compliance with building codes. The call for a review of Kenya's building control legislation and a re-evaluation of Nairobi County's prosecutorial powers is therefore central to addressing the systemic issues that currently hinder effective urban planning and the prevention of illegal developments.

Lawyers advising developers or involved in property compliance in Nairobi should be aware of the current legal complexities and jurisdictional shifts impacting building law enforcement, particularly the transfer of county cases to national courts and the county's limited prosecutorial powers, which may affect the handling and outcome of enforcement actions and challenges.

Source: Original reporting via news sources