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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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  • NEW DEVELOPMENTS
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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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  1. ANNEX D: LAWS GOVERNING CONSTRUCTION AND MAINTENANCE

2. National Building Code, 2024

It seeks to repeal the 1968 Building Code which is now considered obsolete as it does not consider developments that have occurred in the construction industry including green buildings.

Previous1.Local Government (Adoptive ByLaws) Building Order, 1968 and The Local Government (Adoptive By-LawsNext3. National Construction Authority Act, No. 41 of 2011

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· This Code was made by the Cabinet Secretary in consultation with the National Construction Authority Board as provided for under section 42(2) (a) of the NCA Act 2011. The purpose of the Code is to promote order and safety in construction works, and the health and safety of persons in or about construction works. The National Construction Authority will be the enforcer of the Code.

· The Code was published as Legal Notice No. 47 on 1st March 2024 and became effective on 1st March 2025. It repeals the Local Government (Adoptive By-Laws) (Building) Order 1968.

· Section 5 of the Code provides that a person shall not engage in construction works without complying with the Code. Also, one who owns or occupies a building shall comply with the Code. It further provides that a person who intends to undertake any construction works shall obtain: (a) development permission in accordance with the Physical and Land Use Planning Act, 2019; No. 8 of 1999; (b) an environmental impact assessment licence issued in accordance with the Environmental Management and Coordination Act, 1999; (c) a compliance certificate issued in accordance with the Act; and (d) any other applicable approval.

· Section 6 states that preparation of the design and supervision of the works in a building shall only be undertaken by a registered and licensed professional including a physical planner, architect, engineer, land surveyor, building surveyor and quantity surveyor duly registered under the relevant law.

· Part II provides for siting and space about buildings that are acceptable. Section 7 provides that an owner engaging in construction works shall comply with the conditions as may be imposed by the approving authority regarding the siting, size, height, shape and appearance of the building to safeguard, maintain or impose the dignity or preserve the amenity and general appearance of a road, square, public place. Section 9 provides that an owner engaging in construction works on a plot shall ensure that the plot has at least one access from a road. Further, an owner shall develop and maintain the frontage of the building and a building shall not have a frontage abutting onto a road of a width of less than 10m. An owner must not erect a building on a plot with a frontage to a road that is a sanitary lane or passage. Section 14 provides that a plot in which a residential building is constructed shall have an open space at the rear, or partly rear and at the side, of the building and a building shall not be erected within 1.5m of the rear boundary and at least 1.5m from the side boundary which space shall be counted as part of the open space. Section 20 provides where a building contains more than one dwelling and is designed to have an internal courtyard or open space, there shall be in the courtyard or open space, an area free from obstruction of at least 35m2 which has a dimension of at least 4.5m.

· Part III provides for parking spaces or requirements. Section 46 provides that there shall be 1 parking space off the road for residents; and 1 parking space off the road for visitors.

· Part IV contains provisions on preparation of construction sites including preparation of plot, cleaning of construction site, and facilities at a construction site such as: (a) sanitary facilities for the use of the personnel on the site; (b) for the disposal of drainage into a public drain or sewer where a drain or sewer exists on or near a site; and (c) changing rooms for the use of the construction workers on the plot. It provides that before the erection, alteration, scaffolding or demolition of a building, the owner of the plot on which the building is located shall erect a fence, hoarding or barricade, to prevent the public from entering the plot and to protect the public from the activities on the plot.

· Part V provides for building materials and used materials. It provides that a person shall not use or permit to be used, in any construction works, any material which is not— (a) of a suitable nature and quality for the purpose for which it is used; (b) adequately mixed or prepared for the functions for which it is designed; or (c) applied, used or fixed in such a manner as to adequately perform the functions for which it was designed. It provides that all materials shall conform to the standards and codes of practice developed under the Standards Act (Cap 496). Section 59 of the Code permits the use of second-hand materials provided they meet the performance requirements of the corresponding relevant standard.

· Part VI provides for elements of structural design of buildings including structural materials, design and requirements. The Code provides that every building, structural element or component of a building and an incidental structure shall be designed to be safe and serviceable, and the design shall have adequate structural resistance, serviceability, durability and reliability.

· Part VII provides for acceptable spaces within buildings including space requirements for room or space within a building, plan dimensions, room height, protection of opening, distance from staircase, and swimming pool, among others. A room or space within a building shall have the dimensions that will ensure that the room or space is fit for the purpose for which it is intended. A habitable room shall be a dwelling room which has a minimum superficial area of 7.0m2 for a single room occupancy and a minimum internal dimension of 2.1m. (3) The number of persons to be accommodated in a habitable room shall be determined based on 3.5m2 per person. (4) A residential building, and a part of a residential building which is intended to be separately let for dwelling purposes, shall have a kitchen and sanitary facility.

· Part VIII provides requirements for floors, construction of floors, and timber floors. It provides that floors be strong enough to safely support their own weight and any load to which it is likely to be subjected; have a fire resistance appropriate to its use and where required, be non-combustible.

· Part IX speaks of walls including structural strength and stability, roof fixing, wall dimensions, fire resistance and columns and piers in walls among others.

Part X provides for lighting and ventilation including artificial lighting and ventilation, windows, natural lighting, energy efficiency and thermal comfort, among others. It provides that a room shall have a means of lighting and ventilation which shall enable the room to be used for the purpose for which the room is designed without detriment to the health or safety or causing nuisance. A residential building shall have a means of ventilation and shall have windows that are positioned to directly open to the external air. All roof spaces shall be adequately ventilated. Section 161 provides that an owner designing a building may conform to the sustainable design strategies derived from independent green building certification organizations.

· Part XI contains provisions on glazing and cladding by providing that materials used in glazing a building shall be secure, durable and fixed in such a manner to ensure its capacity can sustain wind loads and not allow penetration of water into the interiors of a building.

· Part XII provides for staircases, lifts and escalators. The Code provides that a building which exceeds one storey in height shall have at least one staircase to access the upper floors. The main staircase of a building which exceeds four storeys in height, shall be continued to the roof of the building unless a staircase for use as a fire escape is provided. Where an owner installs an escalator in a building, the owner shall ensure that a staircase is also constructed in the building. A building comprising at least six storeys above ground level shall have at least one passenger lift. (This is a revision from previous regulations that allowed five stories above ground without a lift).

· Part XIII provides for roofing and stipulates that roofing structure design shall be prepared by a civil engineer or an architect. A roof must be constructed in a way that it is durable and waterproof, capable of resisting any force it is likely to be subjected to, prevents accumulation of rainwater on the surface and provides adequate height.

· Part XIV provides for water management, water services, drainage, water disposal and stormwater drainage. It requires the provision of rainwater harvesting in all construction works as well as drainage installation.

· Part XV speaks to electrical installations.

· Part XVI contains provisions on landscaping design considerations. It provides that an owner must provide for a landscaped area whose design shall be prepared by an architect.

· Part XVII provides for inspection and maintenance including periodic inspection of buildings. It requires the inspection of a building to be conducted every five years following completion of such building.

· Part XVIII provides for non-waterborne waste disposal. It provides that a person shall not construct a pit latrine in an urban area unless approved by the approving authority.

· Part XIX provides for refuse disposal by providing that every building shall have an approved means of refuse storage and disposal with the area designated for such disposal located in such a way that it can be accessed from a road for the purpose of removing the refuse.

· Part XX contains provisions in buildings to cater for persons living with disabilities. It provides that a building shall be designed in a manner that facilitates access to the building, and to the use of its facilities, by a person living with a disability. It provides that access for a person living with a disability shall be provided from a point on the plot boundary to at least one entrance, and such access shall not have a step, kerb (other than a dropped kerb), steep ramp, door or doorway which would impede the passage of a wheelchair or other form of barrier which would prevent access by a person living with a disability. It requires for provision of a ramp where there is a change in the level other than when the change in the level is served by a lift.

· Part XXI contains provisions on fire safety and fire installations. It provides that a building shall be designed, constructed and equipped in a manner that ensures that in case of a fire, the protection of occupants as well as their safe evacuation is assured; the spread and intensity of fire is minimized; sufficient stability is retained to ensure it does not affect other buildings.

· Part XXII provides for demolition of buildings.

· Part XXIII provides for disaster risk management on construction sites. There must be firefighting equipment at a construction site, as well as suitable and sufficient safe access to a place of construction works or another place provided for the safe use of a person while at the construction works.

· Part XXIV provides for access roads, cul-de sacs and other private roads. A private road or cul-de-sac shall be accessible from an existing road or another new road and shall have a footpath of a width of at least 2 metres on either side. It further provides that all roads shall have a safe cyclist lane and designated parking spaces and footpaths must be protected to prevent vehicles from entering there. It provides that they shall have channels, drains and sewers for the carriage of rainwater and surface water to a stormwater drain.

· While there are many progressive provisions in the Code, a departure from the current outdated Code, there are also areas that the new Code can improve upon.

· The Code should recognize and provide for a wide array of professionals in the sector beyond architects and engineers to include emerging professionals such as landscapers and project managers.

County governments also seem to lack the capacity to implement the Code. Accordingly, there is a need for more capacity building on the part of counties both in terms of additional staff, training of staff and additional technical resources. Consideration can be given to leveraging resources from the private sector to strengthen the capacity for plan reviews and inspections and implementing the Code

https://new.kenyalaw.org/akn/ke/act/ln/2024/47/eng@2024-03-01