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Centre for Affordable Housing Finance in Africa
  • LEGAL, POLICY AND INSTITUTIONAL REVIEW OF THE AFFORDABLE HOUSING SECTOR IN KENYA
  • QUICK LINKS TO SEARCH FOR THE SOURCE REGULATORY DOCUMENTS
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  • 1. SUMMARY of RECOMMENDATIONS
    • High Level Findings / Recommendations
    • Overall Policy & Regulatory Framework Recommendations
    • Land assembly, land acquisition, title, and registration of land tenure
    • Physical Planning
    • Construction and Maintenance
    • Financing (investment, rental, taxation)
  • 2. HOUSING VALUE CHAIN
    • i. Land assembly, Land Acquisition, Title and Registration of Land Tenure
    • ii. Physical Planning
    • iii. Construction and Maintenance
    • iv. Financing (investment, rental, taxation)
  • 3. INSTITUTIONS INVOLVED IN REGULATION OF HOUSING
    • i. Key National Government Ministries
    • ii. Secondary National Government Ministries
    • iii. County Governments
    • iv. Judiciary
    • v. Professional regulatory and advocacy bodies
  • 4. OVERARCHING POLICIES AND CONTEXT
  • 5. LAND ASSEMBLY, LAND ACQUISITION, TITLE AND REGISTRATION OF TENURE
  • 6. PHYSICAL PLANNING
  • 7. CONSTRUCTION AND MAINTENANCE
  • 8. HOUSING INVESTMENT, FINANCE & TAXATION
    • 8.1 Capital Markets and Wholesale Finance (Equity and Debt)
    • 8.2 Retail Finance
    • 8.3 Financial regulation of rental markets
    • 8.4 Taxation
  • ANNEX A: LAWS / POLICIES / REGULATIONS GOVERNING THE BREADTH OF THE HOUSING VALUE CHAIN
    • 1. Constitution of Kenya 2010
    • 2. Housing Act, 1953 Cap 117 (Revised in 2012)
    • 3. Housing Bill, 2021
    • 4. Sessional Paper No. 3 of 2016 on National Housing Policy
    • 5. Affordable Housing Act 2024
    • 6. Draft Affordable Housing Regulations, 2024
    • 7. The Economic and Social Rights Bill 2022
  • ANNEX B: LAWS / POLICIES / REGULATIONS GOVERNING LAND ASSEMBLY / ACQUISITION / TITLE / TENURE
    • 1. Land Act, No. 6 of 2012
    • 2. Land Registration Act, No. 3 of 2012
    • 3. Idle Land Taxation Policy 2018
    • 4. Community Land Act. No. 27 of 2016
    • 5. Sessional Paper No. 3 of 2009, the National Land Policy
    • 6. National Land Commission Act, No. 5 of 2012
    • 7. National Land Commission (Investigation of Historical Land Injustices) Regulations, 2017
    • 8. National Land Commission (Amendment) Bill, 2023
    • 9. Land Control Act (Cap 302), 1967
    • 10. Land Control Bill, 2023
    • 11. Environment and Land Court Act No. 19 of 2011
    • 12. Survey Act No. 25 of 1961 (Cap 299)
    • 13. Land Registration (General) Regulations, 2017
    • 14. Land Registration (Registration Units) Order, 2017
    • 15. Sectional Properties Act, No. 21 of 2020
    • 16. Land (Amendment) Bill 2022
  • ANNEX C: LAWS / POLICIES / REGULATIONS GOVERNING PHYSICAL PLANNING
    • 1. Sessional Paper No. 1 of 2017 on National Land Use Policy
    • 2. National Land Use Policy Implementation Monitoring and Oversight Tool 2022
    • 3. Kenya National Spatial Plan (2015-2045)
    • 4. Physical and Land Use Planning Act, No. 13 of 2019
    • 5. Physical and Land use Planning (Planning fees), Regulation 2021
    • 6. County Spatial Planning Guidelines, 2018
    • 7. Nairobi City Development Ordinances and Zones Guidelines 2004
    • 8. Nairobi Integrated Urban Development Master Plan (2014-2030)
    • 9. Physical Planning Handbook 2008
    • 10. Sessional Paper No. 10 of 2014 on The National Environment Policy
    • 11. Urban Areas and Cities Act, No. 13 of 2011
    • 12. Physical Planners Registration Act, No. 3 of 1996
    • 13. Export Processing Zones Act, 1990 (Cap 517)
    • 14. Investment Promotion Act, No. 6 of 2004
    • 15. Special Economic Zones Act, No. 16 of 2015
    • 16. Nairobi City County Regularization of Development Act No. 3 of 2015
    • 17. Nairobi City County Community and Neighbourhood Associations Engagement No. 4 of 2016
    • 18. Sectional Properties Regulations, 2021
    • 19. Nairobi City County Development Control Policy
  • ANNEX D: LAWS GOVERNING CONSTRUCTION AND MAINTENANCE
    • 1.Local Government (Adoptive ByLaws) Building Order, 1968 and The Local Government (Adoptive By-Laws
    • 2. National Building Code, 2024
    • 3. National Construction Authority Act, No. 41 of 2011
    • 4. National Construction Authority Regulations, 2014
    • 5. NCA Code of Conduct for the Construction Industry, 2020
    • 6. National Construction Authority (Defects Liability) Regulations, 2020
    • 7. Standards Act, 1974 (Cap 496)
    • 8. Buy Kenya-Build Kenya Strategy 2017
    • 9. Sessional Paper No. 1 of 2013 National Building Maintenance Policy for Kenya
    • 10. National Risk Disaster Management Bill 2023
    • 11. Kenya National Climate Change Response Strategy 2010
    • 12. Sustainable Waste Management Act 2022
    • 13. Forest Conservation and Management Act, No. 34 of 2016
    • 14. Forests (Harvesting) Rules, 2009
    • 15. Public Health Act, 1921 (Cap 242)
    • 16. Public Health (Drainage and Latrine) Rules, 1948
    • 17. Mining Act, No. 12 of 2016
    • 18. Persons with Disabilities Act, No. 14 of 2003
    • 19. The Climate Change (Amendment) Act, 2023
    • 20. Water Act No. 43 of 2016
    • 21. Environmental Management and Coordination Act, No. 8 of 1999
    • 22. Environmental (Impact Assessment and Audit) Regulations, 2003
    • 23. Environmental Management and Co-ordination (Water Quality) Regulations, 2006
    • 24. Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Re
    • 25. Energy Act No. 1 of 2019
    • 26. Proposed Climate Change (Green & Resilient Buildings) Regulations 2023
    • 27. The National Construction Authority (Amendment) Bill 2022
    • 28. The Water (Amendment) Bill, 2023
    • 29. Persons with Disabilities Bill, 2023
    • Case Law
  • ANNEX E: LAWS AND POLICIES RELATING TO PROFESSIONALS IN HOUSING
    • 1. Architect and Quantity Surveyor Act, 1933 (Cap 525)
    • 2. Architects and Quantity Surveyors By-Laws, 1959
    • 3. Competition Act, No. 12 of 2010
    • 4. Engineers Act, No. 43 of 2011
    • 5. Engineering Rules, 2019
    • 6. Engineers (Scale of Fees for Professional Engineering Services) Rules, 2022
    • 7. Engineering Technology Act, No. 23 of 2016
    • 8. Valuers Act, 1985 (Cap 532)
    • 9. The Construction Project Managers and Construction Managers Bill 2023
    • 10. The Real Estate Management Bill 2023
    • 11. The Physical and Land Use Planning (Outsourcing of Professional Services) Regulations, 2021
    • 12. The Valuers Bill, 2022
  • ANNEX F: LAWS GOVERNING FINANCING / RENTAL / TAXATION
    • 1. Retirement Benefits Act, No. 3 of 1997
    • 2. Building Societies Act, 1956 (Cap 489)
    • 3. Banking Act, 1989 (Cap 488)
    • 4. Capital Markets (Real Estate Investment Trusts) (Collective Investment Schemes) Regulations, 2013
    • 5. Central Bank of Kenya Act 1966 (Cap 491)
    • 6. Estate Agents Act, 1984 (Cap 533)
    • 7. Sacco Societies Act, No. 14 of 2008
    • 8. Sacco Societies (Deposit-Taking Sacco Business) Regulations 2010
    • 9. Sacco Societies (Non-Deposit Taking Business) Regulations 2020
    • 10. Sacco Societies (Amendment) Act, 2022
    • 11. Sacco Societies (Specified Non-Deposit Taking Business) (Levy) Order, 2023
    • 12. Cooperative Societies Act, No. 12 of 1997
    • 13. Employment Act, No. 11 of 2007
    • 14. Guarantee (House Purchase) Act, 1967 (Cap 462)
    • 15. Civil Servants (Housing Scheme Fund) Regulations, 2004
    • 16. Housing Scheme Fund Regulations, 2018 (Legal Notice No. 238 of 2018)
    • 17. Income Tax Act (Cap 470)
    • 18. Finance Act, No. 22 of 2022
    • 19. Public Finance Management Act, No. 18 of 2012
    • 20. Unclaimed Financial Assets Act, No. 40 of 2011
    • 21. Proceeds of Crime and Anti-Money Laundering Act, No. 9 of 2009
    • 22. Kenya Deposit Insurance Act, No. 10 of 2012
    • 23. Mortgages (Special Provisions) Act, 1968 (Cap 304)
    • 24. Auctioneers Act No. 5 of 1996
    • 25. Auctioneers Practice Rules 2009
    • 26. Auctioneer Rules, 1997
    • 27. Rent Restriction Act, 1959 (Cap 296)
    • 28. Stamp Duty Act, 1958 (Cap 480)
    • 29. Stamp Duty (Valuation of Immovable Property) Regulations 2020
    • 30. Value Added Tax Act, No. 35 of 2013
    • 31. Public Private Partnerships Act, No. 14 of 2021
    • 32. County Governments Act, No. 17 of 2012
    • 33. National Rating Act, 2024
    • 34. Distress for Rent Act, 1938 (Cap 293)
    • 35. Landlord and Tenant Bill, No. 3 of 2021
    • 36. The Cooperatives Bill, 2024
    • 37. The Central Bank of Kenya (Mortgage Refinance Companies) Regulations, 2019
    • 38. Finance Act No. 4 of 2023
    • 39. Tax Laws (Amendment) Act 2024
    • 40. Tax Procedures (Amendment) Act 2024
  • ANNEX G: OFF-PLAN HOUSING DEVELOPMENTS
  • ANNEX H: IN-DEPTH ANALYSIS ON HANGING REGULATIONS
    • 1. Housing Bill, 2021
    • 2. Landlord and Tenant Bill, No. 3 of 2021
    • 3. Retirement Benefits (Mortgage Loans) (Amendments) Regulations, 2020
    • 4. Housing Scheme Fund Regulations, 2018 (Legal Notice No. 238 of 2018)
    • 5. Housing Scheme Fund Regulations, 2018 (Legal Notice No. 238 of 2018)
    • 6. National Construction Authority (Defects Liability) Regulations, 2020
    • 7. The Finance Bill, 2024
    • 8. The Valuers Bill, 2022
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  • The following laws, regulations and policies with respect to physical planning were reviewed. These are summarized in Annex C with links to their original source for further reference.
  • Gaps in the policy or legislative/institutional framework
  • Laws/Policies/Regulations requiring review/amendment and enforcement

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6. PHYSICAL PLANNING

This section analyzes the particular laws and policies in the physical planning value chain, identifies gaps and makes recommendations.

Previous5. LAND ASSEMBLY, LAND ACQUISITION, TITLE AND REGISTRATION OF TENURENext7. CONSTRUCTION AND MAINTENANCE

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The physical and land use planning component is crucial in the entire gamut of the housing value chain as it stipulates the nature and kinds of housing developments permissible in an area, as well as provides for approvals required in line with the local planning/zoning policies. These planning approvals predate the construction phase and consume a significant amount of time and costs, thus affecting the delivery of housing. Accordingly, there is a need to not only expedite the issuance of these approvals but also to reduce the associated bureaucracy and costs, say through automation and institutional reconfiguration. Most planning approvals are vested in individual county governments with the national government charged with formulating the overall national land use policy and a national spatial plan. However, given the interconnectedness of planning and the need for compatibility of the various land uses which may either be complementary or even conflicting, there are linkages and a critical need for collaboration between national and county governments. This is illustrated by the provision of national, intercounty and county physical and land use consultative forums and development plans.

The following laws, regulations and policies with respect to physical planning were reviewed. These are summarized in Annex C with links to their original source for further reference.

Gaps in the policy or legislative/institutional framework

GAP

RECOMMENDATION

The Urban Areas and Cities Act 2011 and the County Governments Act 2012, require local spheres of government to develop county spatial plans, town plans, and municipal plans in line with the National Spatial Plan.

As of July 2024, only 19 out of the 47 county governments had prepared and were implementing their county spatial plans with the technical assistance of the National Land Commission.[1] While some are still in development, very many towns and municipalities have not prepared these plans, yet they are key to planning and organization of the respective areas. This is largely on account of lack of capacity/expertise and possibly funding.

There is a critical need for county governments, municipalities and towns throughout the country to be supported in developing and expediting their plans to enable orderly physical development. These should all draw from the National Spatial Plan.

(The SUED program is an example of supporting municipal towns with spatial plans)

While rezoning and other planning interventions improve land values, there is no mechanism for these to be retained for developmental purposes. As a result, private landowners benefit from unearned economic rents as land prices escalate. This impacts on both private transactions as well as compulsory acquisition.

A detailed review of land values and property price dynamics, and measures to leverage these in support of affordable housing (and other developmental objectives) is needed, given the competing pressures, especially in urban areas. With this information, it will be possible to reform the planning system to introduce land value capture measures while reducing incentives for land speculation.

Laws/Policies/Regulations requiring review/amendment and enforcement

STATUS / ISSUE

RECOMMENDATION / OPPORTUNITY

The Sessional Paper identifies challenges such as the absence of secure land tenure systems, the high cost of land and building materials, low levels of income, a shortage of skilled labour, poor infrastructure and inadequate funding, which together result in inadequate shelter. While these challenges are all well noted, and recommendations for each have been developed, they have not been implemented. In particular, the recommendation for investment in infrastructure (safe water, drainage, solid waste disposal etc. especially in urban areas) has not been given attention.

The Sessional Paper on National Land Use Policy deserves greater attention and should be implemented in favour of the affordable housing sector. This will require attention to dedicated funding and coordination.

In 2022, the NLC created a monitoring and oversight tool to track the implementation of the Policy. The impact of this has not yet been felt.

The NLC requires support in deploying the monitoring and oversight tool, with respect to urban development

The National Spatial Plan seeks to address the disconnect between economic and spatial planning that has led to uncoordinated and unguided development. It establishes a broad physical planning framework that provides physical planning policies to support economic and sectoral planning. While this plan has been in place for seven years, it has largely not been implemented.

There is a need to promote the implementation of recommendations of the National Spatial Plan. This would include ensuring the development of stronger institutional structures to implement plans, and greater private sector participation. Local spatial Plans should better articulate the connection between spatial and economic factors, bringing these into planning initiatives and providing limited budgetary support in this regard.

The provisions of the Physical and Land Use Planning (Classification of Strategic National or Inter-County Projects) Regulations, 2019 allow developers of strategic national and intercounty projects (including affordable housing projects) to seek development permission directly from the Cabinet Secretary of Lands and Physical Planning.

The provision for developers to obtain approvals for large intercounty affordable housing projects from the Cabinet Secretary requires an implementation framework – that is, the administrative procedures that developers must follow to access this opportunity and speed up approvals.

STATUS / ISSUE

RECOMMENDATION

The Physical Planning Handbook was prepared in 2008 to guide professionals in physical and land use planning. It is however based on the Physical Planning Act 1996. Given the Constitution of Kenya 2010, devolution, and the enactment of the Physical and Land Use Planning Act 2019, the handbook is now outdated and in need of review. The Ministry of Lands and Physical Planning has already developed a concept paper to enable this.

A review and update of the Physical Planning Handbook is critically needed to ensure it aligns with the current legal and institutional framework. Within this, there are opportunities for special attention to key planning challenges, for example, the management of land values, and the realization of sustainable human settlements.

STATUS / ISSUE

RECOMMENDATION

Section 33 of the Urban Areas and Cities Act provides for the establishment of public-private partnerships between county, municipal, and town boards with utility companies (both national and international) to deliver social infrastructure. Such PPPs have not, however, been actualized. This is an area for improvement given the need for such social infrastructure and the financial outlay required.

There is an opportunity for technical assistance to be provided in support of PPP development as envisioned in the Urban Areas and Cities Act.

Section 33(2) of the Urban Areas and Cities Act provides for cross-city and cross-municipality services to overcome local infrastructure challenges. While the law allows for the joint financing of cross-city and cross-municipality services, the legal and administrative mechanisms to give effect to this provision do not yet exist.

There is a need to develop an implementation framework to allow for the delivery of cross-city and cross-municipality services. This may help deal with the infrastructure challenges and promote housing development in urban areas.

STATUS / ISSUE

RECOMMENDATION

Research in support of a debate around the scope and form of ‘green space’ is necessary so that the requirement can be realized within the scope of affordability constraints. What constitutes ‘too small’ for the green space requirement, will need to be defined. The opportunity of using footpaths might also be considered. This will enable an approach whereby the county takes responsibility for green space more broadly, when it is impossible at a development level.

STATUS / ISSUE

RECOMMENDATION

There is a critical need for county planning frameworks to engage with actual patterns of urban development, so that they can be productively shaped and managed. This would require a review of development as currently happens and then an interrogation of current zoning laws and guidelines to identify points of conflict. New, inclusionary and sustainable zoning laws and guidelines will likely need to be developed.

County governments should ensure stringent implementation of noise pollution laws, especially in urban areas.

County zoning laws pay limited or no attention to more recent efforts to ensure urban resilience, (public transport, green space e.t.c), or the ongoing process of informal urban expansion.

As above – a review of county planning frameworks should lead to new zoning laws and guidelines to accommodate new planning priorities and intentions.

The Nairobi City County Development Control Policy provides parameters upon which development applications for land use and development within the county would be evaluated and approvals granted. The Policy provides for the following interventions:

  1. Adoption of a one-stop development approval approach through the constitution of an Urban Planning Technical Committee composed of members from different regulators.

  2. Imposition of an infrastructure levy on development applications to facilitate infrastructure development in collaboration with other Government agencies supporting infrastructure.

  3. Nairobi City County is to incorporate and develop a policy on green building concepts incorporating rainwater harvesting, water recycling and reuse and green energy.

Implementation of the proposals under the Policy particularly on the constitution of the Urban Planning Technical Committee and processing of development applications through the e-development permit system. This will simplify and make the approval process faster.

The proposal relating to infrastructure levy should be subjected to stakeholder engagement prior to imposition. The County should be wary of imposing a high levy which will disincetivise investments in real estate sector in the city.


STATUS / ISSUE

RECOMMENDATION

The Bill proposes that government agencies setting up commercial and residential buildings should reserve at least five percent for acquisition by persons with disabilities. The terms for acquisition should include longer repayment periods and interest-free.

This is a welcomed proposal, however, the Bill is yet to be subjected to the first reading despite being introduced to the National Assembly on 12th June 2023. This is delaying its enactment and subsequent implementation.

Fast track the enactment into law of this Bill. There is another Persons with Disabilities Bill No.7 of 2023 which was passed by the Senate and is currently before the National Assembly for consideration. This proposal is not included in the latter Bill.

The National Assembly should consider consolidation of the two bills or amend Bill No. 7 of 2023 to include the proposal relating to housing as provided in Bill No. 26 of 2023.

[1] National Land Commission, ‘Summary of Status of Land Use Planning Report’ February 2024. Counties which have approved spatial plans are Baringo, Bomet, Kericho, Kilifi, Lamu, Makueni, Kilifi, Kwale, Narok, Nakuru, Kajiado, Siaya, Trans Nzoia, Nairobi, Mombasa, Bungoma, Migori, Kirinyaga and Nyandarua.

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While the Physical and Land Use Planning (Building) Regulations, 2021, provide for 5% green space, the National Building Code 2024 is unclear. According to the judgment in – green space in smaller developments may not be feasible and county should provide adequate green space in their urban plans.

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County zoning laws are largely outdated and unresponsive to current patterns of development such that developments get approved as ‘exceptions’ to the existing plans. For example, extremely high densities are being allowed without approved zoning plans to support the densities. This runs the risk of creating infrastructure backlogs. Further, there is a high prevalence of poor uses adjacent to each other (e.g., industrial uses near housing or entertainment joints/bars) which leads to noise and effluent pollution. There have been complaints around noise pollution in residential areas mainly from bars and restaurants, with little to no enforcement from county governments. It has fallen on courts to deal with these issues ( )

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Sessional Paper No. 1 of 2017 on National Land Use Policy
National Land Use Policy Implementation Monitoring & Oversight Tool, 2022
Kenya National Spatial Plan (2015 - 2045)
Physical and Land Use Planning Act, No. 13 of 2019
Physical and Land Use Planning (Classification of Strategic National or Inter-County Projects) Regulations, 2019
Physical and Land Use Planning (Planning fees), Regulation 2021
Physical and Land Use Planning (National Physical and Land Use Development Plan) Regulations, 2021
Physical and Land Use Planning (County Physical and Land Use Plan) Regulations, 2021
Physical and Land Use Planning (Local Physical and Land Use Development Plan) Regulations, 2021
Physical and Land Use Planning (Institutions) Regulations, 2021
Physical and Land Use Planning (Building) Regulations, 2021
Physical and Land Use Planning (Liaison Committees) Regulations, 2021
Physical and Land Use Planning (Development Permission and Control) (General) Regulations, 2021
County Spatial Planning Guidelines, 2018
Physical Planning Handbook (2008)
Nairobi City Development Ordinances and Zones Guidelines 2004
Nairobi Integrated Urban Development Master Plan (2014 - 2030)
Nairobi Metropolitan Growth Strategy of 1973
Master Plan Study of 1948 (for Nairobi)
Nairobi City County Development Control Policy
Sessional Paper No. 1 of 2017 on National Land Use Policy
National Land Use Policy Implementation Monitoring and Oversight Tool
Kenya National Spatial Plan (2015 – 2045)
Physical and Land Use Planning (Classification of Strategic National or Inter-County Projects) Regulations, 2019
Physical Planning Handbook 2008
Urban Areas and Cities Act 2011
Physical and Land Use Planning (Building) Regulations, 2021
Erick Otieno Ogumo & 2 others v Chigwell Holdings Limited; County Government of Nairobi & another (Interested parties) 2022] eKLR
Nairobi City Development Ordinances and Zoning Guidelines
and other county zoning laws
Elisabeth Kurer Heier & another v County Government of Kilifi & 4 others [2020] eKLR
The Persons with Disabilities Act, 2023