County Government Of Kiambu & 3 others v Cabinet Secretary Ministry of Lands, Public Works, Housing & Urban Development & 3 others (Environment and Planning Petition E003 of 2025) [2026] KEELC 3705 (KLR)
The bottom line
#Kenya's High Court stopped the national government from taking over four Kiambu markets, ruling markets are a county function, and fined officials personally for ignoring court orders.
What this practically means
#Executive summary
#Key legal issues
#Whether market development and regulation is an exclusively devolved function
Yes; trade development and regulation including markets is vested in County Governments under the Fourth Schedule, and the National Government's 'social infrastructure' mandate finds no express anchor there
The Fourth Schedule Part B Paragraph 7 expressly allocates trade development and regulation, including markets, to County Governments. Article 6(2) makes the two levels distinct and interdependent, and Article 189(1) requires respect for each level's functional and institutional integrity. The Respondents' Economic Stimulus Programme justification lacked express constitutional anchor and they failed to discharge the heavy burden of justifying extra-constitutional action at the interlocutory stage.
Whether the Petition was premature for failure to exhaust the Intergovernmental Relations Act dispute mechanisms
No; exhaustion does not apply where irreversible harm is actively in progress
Sections 30, 31 and 32 of the Intergovernmental Relations Act promote amicable resolution and last-resort litigation, but the Act itself permits judicial proceedings where efforts fail. Where one party has deployed armed police, seized public assets, vandalized property and issued short notice to commence works, the Court cannot require negotiation while the subject matter is being dismantled. Statutory ouster of court access is construed narrowly per Halsbury's Laws of England.
Whether conservatory orders should issue pending the Petition
Yes; a prima facie case of constitutional violation with sufficient likelihood of success, engaging public interest in devolution, was established
Applying the Supreme Court's Munya formulation of the conservatory-order test, the Court found the constitutional allocation expressly favoured the Petitioner, documented cooperation had been abandoned, assets had been damaged, dual contractors claimed the same sites, and traders' livelihoods under Articles 40, 43 and 47 were engaged. The contractor's mobilization could not reward speed of unlawful action as a defence against constitutional protection.
Whether the Respondents are in contempt of the conservatory orders of 28/03/2025
Yes; the Court found the cited Respondents disobeyed the issued orders
The Applicant was required to prove a valid order, knowledge, and willful disobedience to a standard higher than balance of probabilities. Penal notices were served, the Judiciary even confirmed the orders' authenticity to the OCS, and the contractor resumed construction under police protection. The Respondents filed no response or submissions despite 21 days, leaving the photographic and video evidence unchallenged and deemed admitted.
Legal principles established
#- Conservatory orders in constitutional matters are granted on the inherent merit of a case, bearing in mind public interest and constitutional values, rather than the classical interlocutory injunction test
- Exhaustion of alternative intergovernmental dispute resolution mechanisms does not bar judicial intervention where irreversible harm is actively in progress
- A government asserting extra-constitutional authority bears a heavy burden of justification
- Court orders must be obeyed by all until set aside or varied, and contempt requires proof of a valid order, knowledge, and willful disobedience to a standard higher than a balance of probabilities
- Unchallenged evidence is deemed admitted
Court orders
#- 1.Conservatory orders restricting the Respondents from accessing, taking possession of, or dispossessing the 1st Petitioner, its staff, and traders from Ngoliba, Karuri, Gakoe, and Maguguni Markets, or any other markets within the Petitioner's jurisdiction
- 2.A conservatory order restraining the 4th Respondent from obstructing or preventing County Staff, Enforcement Officers, and Traders from accessing, trading, and working at the specified markets
- 3.Conservatory orders pending the hearing and determination of the main Petition restricting the Respondents from enforcing the directive in the 1st Respondent's letter dated 20/03/2025 and from accessing or dispossessing the 1st Petitioner and traders from the specified markets
- 4.Costs of the first application to abide the outcome of the main Petition
- 5.A Notice to Show Cause issued to the 1st, 2nd, and 4th Respondents, the OCS Ngoliba, the OCPD Kiambu, the County Commissioner Kiambu, and the Directors of Enchanted Mombasa Limited to personally attend Court on 8/07/2026 to show cause why they should not be committed to civil jail for contempt
- 6.The 1st, 2nd, and 4th Respondents directed to forthwith withdraw their contractor, Enchanted Mombasa Limited, and all agents or workers from the Ngoliba Market premises
- 7.The OCS Ngoliba, OCPD Kiambu, and the County Commissioner directed to immediately cease any presence intended to facilitate construction and to ensure enforcement of the Court orders
- 8.The status quo existing prior to the alleged invasion is restored; any structures erected in defiance of the orders dated 28/03/2025 deemed illegal for the purposes of the suit
- 9.The Court reserved the right to hold the named officers personally liable for any public funds wasted or property destroyed during the period of the alleged contempt
- 10.Costs of the contempt application awarded to the Petitioner-Applicant, to be paid personally by the 1st and 4th Respondents
- Jurisdiction invoked
- Articles 22, 23, 165 of the Constitution of Kenya 2010 (constitutional petition enforcing devolution and fundamental rights); Order 9 Rule 9 of the Civil Procedure Rules and Section 5 of the Judicature Act for the contempt application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government Of Kiambu & 3 others v Cabinet Secretary Ministry of Lands, Public Works, Housing & Urban Development & 3 others (Environment and Planning Petition E003 of 2025) [2026] KEELC 3705 (KLR)", Case Analysis (2026). Constitutional Petition (court file number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3705/eng@2026-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.