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ELCDismissedELC Constitutional Petition No 4 of 2019· [2020] KEELC 3976 (KLR)

Peter Thuita Kariuki & 3 others v Kenya Rural Roads Authority [2020] KEELC 3976 (KLR)

Environment and Land Court of Kenya
29 September 2020
5,969 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed four Nyandarua residents' challenge to a road tender because they offered no evidence, just bare constitutional claims.

What this practically means

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Executive summary

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Four residents of Muruai, Kirima, Githima and Olbolossat villages in Nyandarua County petitioned the Environment and Land Court at Nyahururu, alleging that the Kenya Rural Roads Authority diverted the upgrading to bitumen standards of road D388 (Maili Four–Maili Kumi–Gakoe–Olbolossat–Kaka–Kariamu Junction) to a different route under tender RWC 567 (D1322) without public participation, violating their rights under Articles 1, 10, 20, 21, 27, 33, 35, 47, 50, 201 and 232 of the Constitution. They sought declarations, prohibition and quashing of the tender, and a mandatory order compelling the upgrading of D388. The Respondent maintained the two roads were separate classified projects under separate procurements, that the D388 works were terminated after Lake Olbolossat and its surroundings were declared a protected wetland in July 2018, and that following consultation with the area Member of Parliament the alternative route was chosen in the public interest. The matter proceeded by written submissions. The court framed three issues: whether the Petition disclosed a protectable legal interest, whether rights were infringed, and whether the orders sought were available. Applying Anarita Karimi Njeru, the court found the Petitioners failed to plead and prove violations with the requisite particularity and evidence. Consultation with the area MP constituted adequate public participation; the Article 35 claim failed because no request for information was shown to have been made and denied; and no deprivation, loss or damage was demonstrated under Articles 47 and 50. The prohibition order was overtaken by events. The Petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the Petitioners' constitutional rights were infringed by the alleged diversion of road D388 to RWC 567(D1322) without public participation

Holding

No infringement was proved; consultation with the area Member of Parliament amounted to sufficient public participation and the upgrading of RWC 567 served the public interest.

Reasoning

The court found no evidence supporting the alleged violations beyond bare allegations and citation of constitutional articles. The Respondent explained the change by reference to the declaration of Lake Olbolossat as a protected wetland and consultation with local leadership. The burden of proof lay on the Petitioners, who failed to discharge it, and the consultation with the MP was held to be representative participation.

p. 6
02

Whether the right of access to information under Article 35 was violated

Holding

No violation; the Petitioners did not demonstrate a request for information that was denied.

Reasoning

Article 35 entitles citizens to access information held by the State, but the entitlement must be triggered by a request. The Petitioners asserted they tried to engage the Respondent without success, but nothing was placed before the court showing a specific request for information relating to the alleged road diversion which had been denied. Following precedent, the claim failed.

p. 7
03

Whether the rights to fair administrative action (Article 47) and fair hearing (Article 50) were violated

Holding

No violation; the residents were engaged through their Member of Parliament and no deprivation, loss or damage was demonstrated.

Reasoning

The court applied the JSC v Mbalu Mutava articulation of Article 47 but found from the evidence that the Petitioners and residents had been engaged through their MP before the decision to upgrade RWC 567(D1322). No evidence showed how the decision negatively affected them. The upgrading was in the public interest, enhancing wider mobility and accessibility.

p. 8
04

Whether the Petitioners were entitled to prohibition and certiorari orders

Holding

No; the prohibition order was overtaken by events as the procurement had concluded, and no basis for quashing was established.

Reasoning

The Respondent deponed that the procurement process for tender RWC 567 had concluded and road works were about to begin. A court of equity does not issue orders in vain. Since no constitutional violation was proved, no basis existed for quashing the tender award either.

p. 8

Legal principles established

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  • A party alleging violation of Article 35 rights must first request the information and be denied before approaching the Court.
  • A constitutional petition must identify the provisions violated and provide particulars and evidence of the violation.
  • The court is concerned with the process a statutory body employs to reach its decision, not the merits of the decision.

Court orders

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  1. 1.The Petition is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 1, 10, 19, 20, 21, 22, 23, 258, 27, 33, 34, 35, 47, 50, 162, 174, 201, 232
  • Environment and Land Court Act No. 19 of 2011Sections 4, 13
  • Kenya Roads Act No. 2 of 2007Sections 6, 7, 8, 47, 65
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Legal Notice No. 117 of 28 June 2013
  • Kenya Rural Roads Authority (Vesting) OrderLegal Notice Number 195/2011

Cases cited (15)

  • Kenya Human Rights Commission vs Attorney General & Another
    [2018] eKLR
  • Jane Kiongi & 15 Others vs Laikipia University & 6 Others
    [2019] eKLR
  • Kenya Human Rights Commission vs Non-Governmental Organizations Co-ordination Board
    [2016] eKLR
  • East Africa Pentecostal Churches Registered Trustees & 1754 Others vs Samwel Muguna Henry & 4 Others
    [2015] eKLR
  • John Githinji Wangondu & 6 Others vs Nyeri South Sub-County Co-operative Officer & 3 Others
    [2015] eKLR
  • Mumo Matemu vs Trusted Society of Human Right Alliance & 5 Others
    [2013] eKLR
  • Anarita Karimi Njeru vs Republic
    [1979] eKLR / (196-1980) KLR 1272
  • ESSO (K) Limited vs Matwata Okiya
    [1992] eKLR
  • Benjamin Kipkoech Koskei vs Governor Nakuru County & 2 Others
    [2019] eKLR
  • Kenya Breweries Limited & Another vs Washington O Okeyo
    [2002] eKLR
  • Locabail International Finance Limited vs Agroexport & Others
    [1986] 1 All ER 901
  • Kituo Cha Sheria & Another v Central Bank of Kenya & 8 Others
    [2014] eKLR
  • John Kamau Kenneth Mpapau –vs– City Council of Nairobi & 7 Others
    (2014) eKLR
  • Judicial Service Commission vs. Mbalu Mutava & Another
    [2015] eKLR
  • Kenya Guards Allied Workers Union vs Security Guards Services and 38 Others
    Nairobi H.C. Misc 1159 of 2003
Jurisdiction invoked
Articles 22, 23, 258 of the Constitution; Sections 4 and 13 of the Environment and Land Court Act No. 19 of 2011

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Thuita Kariuki & 3 others v Kenya Rural Roads Authority [2020] KEELC 3976 (KLR)", Case Analysis (2020). ELC Constitutional Petition No 4 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3976/eng@2020-09-29

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