Oyugi & another v County Government of Nairobi; Procurement Regulatory Authority & another (Interested Parties) (Environment and Land Petition E050 of 2025) [2026] KEELC 1174 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Competence of the Notice of Motion without a supporting affidavit
The application was competent; the Petition's supporting affidavit supplied the factual foundation, and Article 159(2)(d) disfavors procedural technicality.
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.
Joinder of the 2nd Interested Party (EACC)
The EACC was improperly joined and was struck out; the Petition alleged no specific act, omission or threatened violation by it.
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.
Threshold for conservatory orders
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.
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.
Legal principles established
#- 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
#- 1.The 2nd Interested Party is struck out from the proceedings.
- 2.The Notice of Motion dated 10th December 2025 is dismissed.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.