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ELCPartially AllowedConstitutional Petition (Environment and Land Court, Garissa) – Notice of Motion dated 10th June 2020, Tender CDA T 016/2019-2020· [2020] KEELC 1868 (KLR)

Abdikhaim Mohamed Osman v Coast Development Authority; Yusuf Omar Abdi & 7 others (Interested Parties) [2020] KEELC 1868 (KLR)

Environment and Land Court of Kenya
26 June 2020
5,639 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court halted a dam tender because the public and the county government were never genuinely consulted before the site was chosen.

What this practically means

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Executive summary

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The Petitioner, the Member of Parliament for Fafi Constituency, moved the Environment and Land Court at Garissa by a Notice of Motion dated 10th June 2020 seeking conservatory orders restraining the Coast Development Authority from proceeding with Tender CDA T 016/2019-2020 for construction of a water pan at Galmagalla, Fafi Sub-County. He contended there was no public participation in site identification, no NEMA licence, and no involvement of the County Government of Garissa despite the project being a devolved function on community land, and alleged breaches of Articles 73 and 75. The Respondent countered that the project was conceived in 2016 following an NDMA feasibility report, that the community had requested it, that an Environmental Impact Assessment was undertaken in May 2020, and that funds would revert to the Treasury if not spent by 30th June 2020. Eight Interested Parties, residents of Galmagalla, were enjoined by consent and supported the Respondent, alleging the Petitioner acted discriminatorily. The court framed four issues and held that the 2016 report and a list of 232 unexplained signatures did not amount to meaningful, qualitative and quantitative public participation; that allegations of conflicts of interest could not be resolved at the interlocutory stage; and that water provision is a devolved function on unregistered community land held in trust by the County Government under Article 63(3), making the tender, issued without county involvement, fatally flawed. The court confirmed the conservatory orders of 12th June 2020 pending the main petition, dismissed the Respondent's and Interested Parties' motions, and ordered costs in the course.

Key legal issues

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01

Adequacy of public participation in site identification

Holding

No meaningful public participation was conducted; a 2016 NDMA report and a list of 232 signatures did not satisfy the constitutional requirement

Reasoning

Applying Article 10 and precedent, the court held that public participation must be real, not illusory, and may be achieved through innovative means including barazas, memoranda and media dissemination. The Respondent's evidence — a proposal letter with a list of about 232 names and signatures with no indication of origin, questions asked, or notice to residents — failed both the qualitative and quantitative tests for meaningful public participation.

p. 7
02

Alleged breach of Articles 73 and 75 (leadership and integrity)

Holding

Allegations of conflicts of interest against the Respondent's CEO and counter-allegations of discrimination by the Petitioner could not be determined at the interlocutory stage

Reasoning

The court found these to be serious allegations of improper motive and discrimination requiring a full trial on affidavit and viva voce evidence; they were not suitable for determination on the interlocutory applications before it.

p. 8
03

Devolution and community land — lawfulness of the tender

Holding

Water provision and dam construction is a devolved function; the project is on unregistered community land held in trust by the County Government of Garissa, and proceeding with the tender without involving the County Government was fatal

Reasoning

Relying on the Fourth Schedule and Article 63(3), the court held the County Government of Garissa was a crucial party that should have been involved from the first instance. Neither its involvement in site identification nor consultation on the tender was shown, rendering the tender unlawful.

p. 8
04

Whether irregularities could be regularized before the end of the financial year

Holding

The flaws could not be rectified in the remaining days; meaningful public participation requires substantial time

Reasoning

Although parties proposed 14 days to regularize, the court held the irregularities — particularly the need for genuine public participation achieving qualitative and quantitative results — could not be cured in less than the time remaining before 30th June 2020, so the conservatory orders were confirmed.

p. 8

Legal principles established

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  • Public participation must be real, quantitatively and qualitatively meaningful, and cannot be demonstrated by an unexplained list of signatures
  • Unregistered community land is held in trust by county governments, and a devolved function cannot be undertaken without involving the relevant county government

Court orders

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  1. 1.The conservatory orders issued on 12th June 2020 are confirmed pending hearing and determination of the main petition
  2. 2.The Notice of Motion dated 18th June 2020 by the Respondent seeking discharge of the conservatory orders fails
  3. 3.The Notice of Motion by the Interested Parties dated 18th June 2020 fails
  4. 4.Costs shall be in the course

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 12, 34, 43, 63(3), 73, 75; Fourth Schedule
  • Judicature ActSection 10, Cap 8
  • Civil Procedure ActOrder 1 Rule 10, Section 3A
  • Environment and Land Court ActSection 13, No. 19 of 2011
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 19 & 23
  • Environmental Management and Co-ordination ActSection 58(1), No. 8 of 1999
  • Environment (Impact Assessment and Audit) Regulations2003
  • Environmental (Strategic Assessment and Audit) Regulations2015

Cases cited (10)

  • John Muraya Mwangi & 495 Others v Minister for Provincial Administration & Internal Security & 4 Others
    (2014) eKLR
  • Merafong Demarcation Forum and Others v The Republic of South Africa and Others
    (2008) ZACC 10
  • Robert N. Gakuru & Others v Governor, Kiambu County & 3 Others
    (2014) eKLR
  • Doctors for Life International v Speaker of the National Assembly and Others
  • Cortec Mining Kenya Limited v Cabinet Secretary Ministry of Mining & 9 Others
    (2015) eKLR
  • Republic v Cabinet Secretary Ministry of Agriculture, Livestock & Fisheries & 4 Others Exparte Council of County Governors & Another
    (2017) eKLR
  • British American Tobacco Kenya v Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & Another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Parties)
    (2019) eKLR
  • Okiya Omtatah Okoiti & Another v The Attorney General & 4 Others; The Law Society of Kenya v The Hon. Attorney General & 5 Others (consolidated)
    2020 unreported
  • Mul Coal Basin Local Community & 15 Others v Permanent Secretary Ministry of Energy & 17 Others
    (2015) eKLR
  • Muslims for Human Rights (Muhuri) & 4 Others v Inspector General of Police & 2 Others
    (2014) eKLR
Jurisdiction invoked
Article 23 and 165 of the Constitution; Section 13 of the Environment and Land Court Act; Rules 19 & 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Abdikhaim Mohamed Osman v Coast Development Authority; Yusuf Omar Abdi & 7 others (Interested Parties) [2020] KEELC 1868 (KLR)", Case Analysis (2020). Constitutional Petition (Environment and Land Court, Garissa) – Notice of Motion dated 10th June 2020, Tender CDA T 016/2019-2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1868/eng@2020-06-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.