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ELCDismissedNot stated in the judgment· [2026] KEELC 1174 (KLR)

Oyugi & another v County Government of Nairobi; Procurement Regulatory Authority & another (Interested Parties) (Environment and Land Petition E050 of 2025) [2026] KEELC 1174 (KLR)

High Court of Kenya
20 February 2026
3,241 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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By a Notice of Motion dated 10th December 2025 under Articles 159(2)(a) and (d) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 22 Rule 22 of the Civil Procedure Rules, the Petitioners sought conservatory orders halting development and construction activities in the Nairobi CBD by the Respondent and compelling the Interested Parties to stop, prevent and investigate those activities, pending determination of their Petition. The Petitioners, said to act for commuters and traders in the CBD, alleged unlawful eviction directives issued without public participation or due process, contrary to Articles 25, 26, 28 and 47. The Respondent filed Grounds of Opposition contending the application was vexatious, unsupported by an affidavit, and disclosed no cause of action. The 2nd Interested Party, the Ethics and Anti-Corruption Commission, opposed the application, arguing it was improperly joined since no complaint had been lodged with it and the subject matter fell outside its statutory mandate. The court framed three issues: competence of the application, joinder of the 2nd Interested Party, and the threshold for conservatory orders. It held the absence of a supporting affidavit was not fatal given Article 159(2)(d) and the supporting affidavit on the Petition. However, it found the EACC improperly joined - no specific violation by it was pleaded and the Court cannot compel investigations absent a complaint - and struck it out. On the conservatory orders, the court found no prima facie case: no eviction notice or enforcement instrument was produced, and the claims amounted to a generalized grievance. The Petitioners also failed to show prejudice or that the Petition would be rendered nugatory. The application was dismissed; the 2nd Interested Party was struck out from the proceedings. No express costs order was stated.

Key legal issues

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01

Competence of the Notice of Motion without a supporting affidavit

Holding

The application was competent; the Petition's supporting affidavit supplied the factual foundation, and Article 159(2)(d) disfavors procedural technicality.

Reasoning

Rule 19 of the Mutunga Rules provides that a formal application may be supported by an affidavit, but constitutional litigation is also guided by Article 159(2)(d), which commands courts to administer justice without undue regard to procedural technicalities. Since the Petition was supported by an affidavit setting out the facts and the application introduced no new contested matters, the missing affidavit was not fatal.

p. 4
02

Joinder of the 2nd Interested Party (EACC)

Holding

The EACC was improperly joined and was struck out; the Petition alleged no specific act, omission or threatened violation by it.

Reasoning

Applying Meme v Republic, joinder turns on whether a party's presence is necessary for complete settlement of the questions involved. The EACC is an independent constitutional commission under Article 79 and Section 3 of the EACC Act; no complaint was lodged with it, and the dispute concerned evictions and cabro installation, outside its investigative mandate. Its presence was not necessary for resolution of the constitutional questions.

p. 6
03

Threshold for conservatory orders

Holding

Conservatory orders were refused because the Petitioners established no prima facie case, no real prejudice, and no risk that the Petition would be rendered nugatory.

Reasoning

Relying on Judicial Service Commission v Speaker of the National Assembly and Gitirau Peter Munya, conservatory orders are public-law remedies granted on the inherent merit of a case bearing in mind public interest. The Petitioners produced no eviction notice or enforcement instrument, and their claims were a generalized grievance rather than a crystallized arguable violation; nor did they show prejudice or that the Petition would be nugatory without interim orders.

p. 8

Legal principles established

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  • The absence of a supporting affidavit to a Notice of Motion in constitutional litigation is not fatal where the Petition itself is supported by an affidavit setting out the same factual basis.
  • A party is properly joined only if its presence is necessary to enable the Court to effectively adjudicate all questions in the Petition.
  • A court cannot compel the EACC to commence investigations absent a properly lodged complaint, given the Commission's independence under Section 28 of the EACC Act.

Court orders

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  1. 1.The 2nd Interested Party is struck out from the proceedings.
  2. 2.The Notice of Motion dated 10th December 2025 is dismissed.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 23(3), 25, 26, 27, 28, 40, 43, 47, 48, 50, 79, 118, 159(2)(a) and (d), 252(1)(a)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 22 Rule 22
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRule 5(d), Rule 19
  • Ethics and Anti-Corruption Commission ActSections 3, 11(1)(d) and (e), 28

Cases cited (10)

  • Alfred N. Mutua v. Ethics and Anti-Corruption Commission and 4 others
    [2016] eKLR
  • Attorney-General v Oluoch
    [1972] 1 EA 392
  • BOG Misyani Girls Secondary School v Joseph Mutiso Kioko
    [2019] KEHC 1367 (KLR)
  • Meme v. Republic
    [2004] 1 EA 124
  • Judicial Service Commission v Speaker of the National Assembly & Another
    (2013) eKLR
  • Gitirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others
    (2014) eKLR
  • Wilson Kberia Nkunja v The Magistrates and Judges Vetting Board and Others
    Nairobi High Court Constitutional Petition No. 154 of 2016
  • Kevin K Mwiti & Others vs Kenya School of Law & Others
    (2015) eKLR
  • Kenya Association of Manufacturers & 2 Others v Cabinet Secretary – Ministry of Environment and Natural Resources & 3 Others
    (2017) eKLR
  • Centre for Rights Education & Awareness (CREAW) & Another vs. Speaker of the National Assembly & 2 Others
    (2017) eKLR
Jurisdiction invoked
Articles 22, 23(3) and 159(2)(d) of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 22 Rule 22 of the Civil Procedure Rules, 2010

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, "Oyugi & another v County Government of Nairobi; Procurement Regulatory Authority & another (Interested Parties) (Environment and Land Petition E050 of 2025) [2026] KEELC 1174 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1174/eng@2026-02-20

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