Oguku & 2 others v Speaker of the County Assembly, Kisii County & 3 others (Environment & Land Petition E002 of 2023) [2025] KEELC 1053 (KLR) (6 March 2025) (Judgment)

Key Facts

Issues

• The court assessed whether the respondents provided sufficient public participation before deciding the location of the Boikanga Ward offices, considering meetings in 2014 and 2022.
• The petitioners claimed the construction on Nyakembene Market land violated planning laws and Section 79 of the Public Finance Management Act, but the court found no such violation, noting the land was public and the decision was reasonable.
• The court considered a preliminary objection that the petition was res judicata, having been previously addressed in Kisii HCCC No. 4 of 2014, but dismissed the objection.

Holdings

• The court determined that the respondents conducted adequate public participation in deciding the location of the Boikanga Ward Offices. The decision to locate the offices at Nyakembene was based on recommendations from a Task Force formed by the community in 2014, which was entrusted to identify a suitable site. The Task Force later resolved to use public land at Nyakembene after being unable to secure land at Ichuni. The court emphasized that public participation does not require unanimity but necessitates that all views are considered and the final decision is reasonable. The petitioners' claims of insufficient participation and misappropriation of funds were dismissed as the court found no evidence of a viable alternative site or financial impropriety.
• The court held that the decision to locate the offices at Nyakembene did not violate Section 79 of the Public Finance Management Act. The use of existing public land was deemed lawful and economical, as the County Government lacked funds to purchase private land. The court found no imprudent management of public finances in the allocation of market land for the offices.
• The court concluded that the petitioners failed to establish that the chosen site (Nyakembene) lacked approval or that alternative land (e.g., South Mugirango/Bikanga/239) was legally viable. The minutes and evidence submitted by the petitioners did not confirm ownership or availability of the alternative land. Thus, the respondents' decision was not unreasonable.
• The petition was dismissed with no costs ordered, as it was brought in the public interest. The court also lifted the injunction previously granted to halt construction of the ward offices.
• The court rejected the preliminary objection that the petition was res judicata, ruling on 17 September 2024 that the matter was not previously conclusively addressed. The 2014 court case (Kisii HCCC No. 4 of 2014) resolved the dispute by forming a Task Force, which the current petitioners could not demonstrate was invalid or superseded. The court affirmed its jurisdiction to review the current petition independently.

Remedies

• The court dismissed the petition, concluding that there was adequate public participation and the decision to locate the offices at Nyakembene was reasonable and lawful.
• The court lifted the injunction orders that had been issued to restrain the construction of the Boikanga Ward offices pending the petition's determination.
• No costs were awarded to either party since the petition was filed in the public interest.

Legal Principles

• The judgment highlighted the importance of public participation under the 2010 Constitution (Articles 10, 174, 201) and statutory provisions (County Government Act Sections 87, 115; Public Finance Management Act Section 79), ruling that the respondents' decision met the threshold of reasonable public engagement despite challenges to its adequacy.
• The court rejected the respondents' argument that the petition was res judicata, determining that the current petition was not conclusively addressed in a prior court case (Kisii HCCC No. 4 of 2014).

Precedent Name

• Nairobi Metropolitan PSV Saccos Union Ltd & 25 Others v County of Nairobi Government & 3 Others
• Republic v County Government of Kiambu Ex parte Robert Gakuru & another

Cited Statute

• Public Finance Management Act, Section 79
• Constitution of Kenya, 2010
• County Government Act, Section 87
• County Government Act, Section 115

Judge Name

Passage Text

• 19. From the above, it is apparent that the public did resolve in 2014 to get land at Ichuni and a Task Force was formed for this purpose. The public entrusted this Task Force to identify the location of the proposed office. It appears that the Task Force was unable to get land at Ichuni and they eventually resolved to have the offices located at Nyakembene with concurrence of the Nyakembene Market Committee who agreed to carve out land measuring 100 x 100 feet to accommodate the offices.
• (Petitioners filing suit to contend that there was no adequate public participation before a decision was made on where to locate the Boikanga Ward Offices; need for public participation in issues related to governance; from the facts, apparent that there had been a long running dispute on where to locate the offices with different views being given; a task force was formed; task force making recommendation on where to locate the offices which is now being objected by the petitioners; court persuaded that there has been adequate public participation and the decision on where to locate the offices is not unreasonable; petition dismissed)
• 22. And neither can it be argued that the said decision is an unreasonable one... Thus essentially, the petitioners have failed to demonstrate that there is alternative land for constructing the ward offices. I cannot see on what basis they fault the decision to have the offices in the land set aside by the Market Committee.