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ELCDismissedPetition filed 12 July 2023 (number not stated in judgment)· [2025] KEELC 1053 (KLR)

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

Environment and Land Court
6 March 2025
3,751 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court ruled that public participation doesn't require everyone to agree, just a genuine chance to be heard, dismissing residents' challenge to Kisii ward offices.

What this practically means

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Executive summary

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Three residents of Boikanga Ward, Kisii County, petitioned against the construction of the Boikanga Ward MCA offices at Nyakembene Market, contending that the land was unapproved, that no effective public participation was conducted, and that the decision violated Articles 10, 174 and 201 of the Constitution, Sections 87 and 115 of the County Government Act and Section 79 of the Public Finance Management Act. They sought declarations, a permanent injunction and prohibition, and costs. The respondents, through affidavits of Dr. Kennedy Mwengei Ombaba and Acting Clerk Jacob M. Onkeo, countered that the dispute over the office location was over a decade old, that public forums in 2014 (over 500 attendees), a community-chosen Task Force, consultative meetings in 2019 with the Nyakembene Market Committee, and a 10 November 2022 participation exercise had all been held. A preliminary objection on res judicata (Kisii HCCC No. 4 of 2014) had earlier been dismissed by the court on 17 September 2024. Applying the test in Republic v County Government of Kiambu Ex parte Robert Gakuru, the court held that the yardstick is a reasonable opportunity to be heard, not unanimity. The Task Force, chosen by the public in 2014, recommended Nyakembene when Ichuni land proved unavailable; the decision was neither capricious nor unreasonable. The petitioners failed to prove suitable alternative land, and building on donated public land did not offend Section 79. The petition was dismissed, the interim injunction lifted, and, as the suit was brought in public interest, each party was left to bear its own costs (no orders as to costs).

Key legal issues

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01

Whether public participation was adequate in deciding the location of the Boikanga Ward Offices

Holding

Public participation was sufficient: the 2014 public forum, the community-chosen Task Force, the 2019 consultative meetings with the Nyakembene Market Committee, and the 10 November 2022 participation exercise satisfied the test.

Reasoning

The court applied the test that a reasonable opportunity to be heard suffices; unanimity is not required. The residents in 2014 resolved to form a Task Force to identify land; when Ichuni land was unavailable, the Task Force recommended Nyakembene with the Market Committee's concurrence. The decision flowed from a body the public itself created and was not whimsical or capricious.

p. 6
02

Whether the decision on the location of the offices was unreasonable

Holding

The decision was reasonable; the petitioners failed to demonstrate any suitable alternative land, as their annexed minutes did not resolve on South Mugirango/Bikanga/239 and no search or Green Card established ownership or availability.

Reasoning

The petitioners relied on minutes they claimed showed unanimous agreement to locate the offices on a 10-acre parcel, but the minutes contained no such resolution, and ownership/availability of the land was not proved. In contrast, the Nyakembene site was public land carved out by the Market Committee. The court therefore found no basis to fault the respondents' decision.

p. 6
03

Whether locating the offices on market-centre land offends Section 79 of the Public Finance Management Act

Holding

No violation; building on public land given free by the Market Committee saves public money and is prudent management of public resources.

Reasoning

Section 79 requires public officers to use resources lawfully, effectively, efficiently, economically and transparently. The court noted the decision was motivated by lack of funds to purchase alternative land and the availability of public land, which conserves public funds rather than wasting them.

p. 7

Legal principles established

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  • The yardstick for public participation is that a reasonable opportunity is given to members of the public and interested parties to know about the issue and have an adequate say; unanimity or adoption of particular views is not required.
  • Where all views were taken into account and the final decision is reasonable, the court will not interfere with the decision merely because some stakeholders disagree.

Court orders

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  1. 1.The petition is dismissed
  2. 2.The order of injunction previously issued is lifted with the dismissal of the case
  3. 3.No orders as to costs, since the petition was brought in public interest

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 174
  • Constitution of Kenya, 2010Article 201
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 35
  • County Government ActSections 87 and 115
  • Public Finance Management ActSection 79

Cases cited (2)

  • Republic v County Government of Kiambu Ex parte Robert Gakuru & another
    [2016] eKLR
  • Nairobi Metropolitan PSV Saccos Union Ltd & 25 Others v County of Nairobi Government & 3 Others
    Petition No. 486 of 2013
Jurisdiction invoked
Articles 22 and 23 of the Constitution (enforcement of the Bill of Rights), invoked by the petitioners under Article 22 and 35

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, "Oguku & 2 others v Speaker of the County Assembly, Kisii County & 3 others (Environment & Land Petition E002 of 2023) [2025] KEELC 1053 (KLR)", Case Analysis (2025). Petition filed 12 July 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1053/eng@2025-03-06

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