Samwel Nyambega Ndubi & 12 Others v County Government of Nyamira & 1 other

2. The Petitioners state that they are residents, traders and proprietors of businesses and property within Magwagwa Township who are likely to be directly affected by the proposed construction, undertaken by the 1st Respondent with the involvement of the National Government and the National Land Commission, which they say threatens their proprietary and commercial interests. 3. Sometime in March 2026 the 1st Respondent publicly announced its intention to undertake the project and thereafter convened a public participation meeting on 11th March 2026 at the Sub-County Commissioner's offices, which the Petitioners attended, presenting a signed memorandum on behalf of affected residents, traders and property owners. They contend, however, that the exercise fell short of the constitutional requirement of meaningful public participation because the concerns raised were neither adequately addressed nor acted upon. 4. Those concerns, raised at the meeting, related to the extent of land required, the possibility of compulsory acquisition of private property, the fate of affected traders and residents, project timelines, environmental implications, and the applicable compensation framework. The Petitioners contend these remained unanswered, with the Respondents offering

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only general assurances without disclosing material information necessary for informed participation. 5. On 16th March 2026 the Petitioners, through their advocates, wrote to the County Government requesting disclosure of the project design, Environmental and Social Impact Assessment reports, valuation reports, project duration, acquisition plans, compensation notices, funding details, anticipated community benefits and other relevant documents. They aver that no substantive response was received, despite the guarantee of access to information under Article 35 of the Constitution. 6. A further meeting was convened by the National Land Commission on 27th March 2026, but the Petitioners maintain that the Commission's representative attended merely to receive concerns without providing any agenda or substantive response, and that the meeting therefore did not amount to meaningful engagement as contemplated by the Constitution and the County Governments Act. 7. The Petitioners complain that officers of the 1st Respondent subsequently measured parcels of land and buildings in Magwagwa Township without prior notice or explanation, heightening fears of imminent compulsory acquisition and demolition. A notice dated 27th March 2026 (Ref. CGN/LHUD/P.LAND/54/VOL.IV/77) listing affected persons was

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later circulated, but, they say, without disclosing the basis for identifying those listed or specifying the parcels or buildings affected. 8. The Petitioners further note the Governor of Nyamira's public announcement that the National Government had allocated KES. 900 million towards the project, with construction expected to commence in the 2026/2027 financial year, which they argue demonstrates an intention to proceed without lawful acquisition procedures, adequate public participation, or disclosure of information. 9. They also complain that the Respondents intend to use public funds to acquire private land while failing first to reclaim approximately eleven acres of public land originally reserved for the stadium, which has since been encroached upon by a school, church, hospital and private developments, arguing that public land should be recovered before private property is acquired. 10. The Petitioners state that the resulting uncertainty has already caused economic hardship in Magwagwa Township with prospective tenants declining to occupy premises, existing tenants vacating, diminished rental income, and general business disruption.

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11. On this basis, the Petitioners allege violations of Articles 10, 35, 40 and 47 of the Constitution, failure to facilitate meaningful public participation, denial of access to information, threatened deprivation of property without due process or compensation, and denial of fair administrative action, together with breaches of the Land Act, the National Land Commission Act, the Environmental Management and Co-ordination Act and the County Governments Act. 12. The Petition accordingly seeks declarations of constitutional violation; orders of mandamus compelling publication of the list of affected persons, valuation reports, ESIA approvals and other project documents; orders that any compulsory acquisition and compensation be undertaken strictly according to law before implementation; conservatory orders restraining the project pending compliance with the law; a declaration that encroached public land be reclaimed before private land is acquired; costs; and any further relief the Court may deem just. 13. Simultaneously, the Petitioners filed the Notice of Motion dated 14th April 2026, supported by the affidavit of Samwel Nyambega Ndubi sworn the same date, seeking interim conservatory orders restraining implementation of the project and mandatory orders compelling disclosure of project documents, pending determination of both the Motion and the

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Petition. The Motion is supported by correspondence with the Respondents, public participation notices, residents' memoranda, meeting minutes, lists of affected parcels, tenancy agreements, official searches and photographs. 14. The 1st Respondent opposed both the Petition and the Notice of Motion through the Replying Affidavit of Bernard Maina, County Executive Committee Member for Lands, Housing and Urban Development, sworn on 10th June 2026, together with a Notice of Preliminary Objection dated 3rd June 2026. 15. The 1st Respondent contends the Petition is fundamentally misconceived and an abuse of process, proceeding on the erroneous assumption that a compulsory acquisition process is ongoing or intended, when none has been commenced or is contemplated. 16. The 1st Respondent further deposes that the Petitioners have failed to demonstrate that they own any land likely to be affected by the proposed project. It is averred that no official searches, title documents, survey reports or other evidence have been produced to identify any parcel owned by the Petitioners as falling within the proposed project area. It is further deposed that no notices of compulsory acquisition, eviction or demolition have been issued to any of the

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Petitioners because no compulsory acquisition process has been commenced. 17. It is further deposed that although the National Government intends to undertake the construction of the proposed Esanige Stadium, the project has not reached the stage of compulsory acquisition of private land. According to the 1st Respondent, should acquisition of private land ultimately become necessary, the County Government's present intention is to pursue acquisition through voluntary negotiations and private treaty rather than compulsory acquisition. It is also averred that individual notices were issued to all persons whose parcels had been identified as potentially relevant to the project, copies of which have been annexed to the replying affidavit. 18. The 1st Respondent disputes that public participation was inadequate, asserting that meaningful and continuous participation has been undertaken and will continue at every necessary stage, relying on the participation notices and minutes annexed to its affidavit. 19. On the alleged denial of access to information, the 1st Respondent contends the Petitioners failed to invoke the statutory procedure under the Access to Information Act and the Access to Information (General) Regulations, 2023 before

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approaching the Court, and that the scope of information requested exceeds what Article 35 and the Act contemplate. It further argues that disclosure at this stage would compromise ongoing policy deliberations and the privacy of non-parties. 20. The 1st Respondent additionally challenges the competency of several prayers, arguing that the mandatory orders sought are final reliefs disguised as interlocutory prayers that would effectively determine the Petition before trial, and that the conservatory orders sought are vague, unenforceable, and implementation is directed primarily the at a project National whose Government's responsibility, a party not joined to the proceedings. 21. The 1st Respondent accordingly urges that the Petition discloses no actionable constitutional violation, is speculative and premature, and amounts to an abuse of process, and prays that both the Petition and the Motion be dismissed with costs. 22. Separately, the 1st Respondent's Notice of Preliminary Objection dated 3rd June 2026 contends this Court lacks jurisdiction, as the dispute substantially concerns the proposed acquisition and use of public and private land and related environmental issues arising from the project, matters

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falling exclusively within the jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act. It invokes Article 165(5)(b) and urges that the proceedings be struck out for want of jurisdiction. 23. The through Petitioners Grounds opposed of the Opposition Preliminary dated 7th Objection July 2026, contending it does not raise a pure point of law as it is intertwined with disputed facts. They maintain the Petition raises constitutional grievances including denial of access to information, threatened deprivation of property without compensation, lack of meaningful public participation, and violation of the right to fair administrative action falling squarely within the High Court's constitutional jurisdiction and not reducible to an ordinary land dispute. They pray that the objection be dismissed with costs. 24. The 2nd Respondent, the National Land Commission, opposed the Petition through the Replying Affidavit of Brian Ikol, its Director of Legal Affairs and Enforcement, explaining that it is an independent constitutional commission under Article 67 mandated to manage public land on behalf of the National and County Governments and to investigate complaints relating to public land. Under section 107 of the Land Act, acquisition of land for public purposes may only

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commence upon a formal request submitted to the Commission by the relevant National or County Government. 25. The 2nd Respondent deposes that no such request has been received from the 1st Respondent, and consequently no compulsory acquisition process has been commenced before it. On the alleged encroachment of public land reserved for the stadium, the Commission states it has authority to investigate such allegations and undertakes to do so and file its findings before the Court, on which basis it urges that the claims against it are premature. 26. Pursuant to the Court's directions, the Notice of Preliminary Objection dated 3rd June 2026 and the Notice of Motion dated 14th April 2026 were canvassed by written submissions. The Court has considered the Petitioners' submissions dated 25th July 2026 opposing the Preliminary Objection, the Petitioners' submissions dated 15th May 2026 supporting the Notice of Motion, and the 1st Respondent's submissions dated 24th July 2026 supporting the Preliminary Objection. 27. Counsel for the 1st Respondent submitted that the Court lacks jurisdiction because, notwithstanding the constitutional provisions invoked, the dispute relates to compulsory acquisition, public and private land, land administration and

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environmental matters falling within the Environment and Land Court's jurisdiction, and urged the Court to uphold the objection and decline jurisdiction. 28. Counsel for the Petitioners opposed the objection, submitting that the Petition principally raises constitutional questions of public participation, access to information, protection of property and fair administrative action, that the objection does not raise a pure point of law, and that the High Court is properly seized of jurisdiction under Article 165 to determine the alleged Bill of Rights violations. 29. In support of the Motion, counsel for the Petitioners further submitted that the Respondents failed to undertake meaningful public participation, denied access to information, threatened compulsory acquisition without following the law, and failed to recover public land before targeting private land, and that the threshold for conservatory relief had been met. Counsel urged the Court to dismiss the Preliminary Objection and allow the Motion. 30. Having considered the pleadings, affidavits, rival submissions and applicable law, the issues for determination are — 1) Whether the Notice of Preliminary Objection raises a proper preliminary objection in law.

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2) Whether this Court has jurisdiction to hear and determine the Petition and the Notice of Motion. 32. The first issue for determination is whether the Notice of Preliminary Objection raises a proper preliminary objection. The Petitioners contend that it does not, arguing that the objection invites the Court to resolve disputed questions of fact, including whether the Petitioners' parcels fall within the proposed stadium project, whether public participation was undertaken, and whether their constitutional rights have been infringed. 33. The 1st Respondent takes the contrary view that the objection raises a single question of law, namely whether this Court has jurisdiction to entertain the dispute, a question capable of determination from the pleadings alone without the need to receive evidence. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the former Court of Appeal for Eastern Africa held that a preliminary objection consists of a pure point of law which is argued on the assumption that the facts pleaded by the opposite party are correct and which, if upheld, is capable of disposing of the proceedings. Having examined the Notice of Preliminary Objection and the pleadings before it, the Court is satisfied that the objection is confined to the question of jurisdiction. It neither invites the

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Court to resolve contested factual matters nor to evaluate the evidence placed before it. The Court therefore finds that the objection raises a pure point of law and is properly taken as a preliminary objection. 34. Having found that the Notice of Preliminary Objection is competently before the Court, the next issue is whether this Court has jurisdiction to entertain the Petition and the Notice of Motion. 35. The Petitioners maintain that the invocation of Articles 22, 23 and 165 of the Constitution confers jurisdiction upon this Court to determine the alleged violations of constitutional rights and fundamental freedoms. The Respondents, on the other hand, contend that the dispute, properly characterized, concerns the acquisition, use and administration of land and therefore falls within the exclusive jurisdiction of the Environment and Land Court. 36. In Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court held that jurisdiction is everything and that without it a court has no power to make one more step. The Court agrees that jurisdiction is a threshold issue which must be determined before any consideration of the merits of the Petition or the interlocutory application.

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37. Jurisdiction is conferred only by the Constitution or statute, a proposition firmly supported by Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, where the Supreme Court held that a court cannot arrogate to itself jurisdiction beyond that donated by the Constitution or legislation. The Court must therefore ascertain the true nature of this dispute before assuming jurisdiction. 38. Having examined the Petition, the supporting affidavit and the reliefs sought, the Court notes that the Petitioners seek declarations relating to the proposed implementation of the Esanige Stadium Project, orders restraining the acquisition and use of land for that project, declarations concerning public participation, access to information, recovery of public land, valuation and compensation, together with consequential relief. The Petitioners maintain that these are constitutional grievances properly falling within the jurisdiction of the High Court, whereas the Respondents contend that the constitutional questions are merely incidental to a dispute concerning the proposed acquisition, use and administration of land and should therefore be determined by the Environment and Land Court.

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39. The Petitioners further contend that the proposed project was undertaken without meaningful public participation contrary to Articles 10 and 232 of the Constitution. The Respondents dispute that contention and maintain that adequate public participation was undertaken before commencement of the project. In Robert N. Gakuru & Others v Governor Kiambu County & 3 Others [2014] eKLR, the Court discussed the constitutional standard of meaningful public participation in governmental decision-making. Whether that standard was met in the present case necessarily depends upon an examination of the process undertaken by the Respondents and the evidence relating to the implementation of the project. 40. The Petitioners also allege that the Respondents violated their right of access to information under Article 35 of the Constitution by failing to disclose information relating to the proposed project. The Respondents deny that allegation and maintain that the Petitioners were duly informed of the intended project. In Nairobi Law Monthly Company Ltd v Kenya Electricity Generating Company & Another [2013] eKLR, the Court affirmed the constitutional importance of the right of access to information as a means of promoting transparency and

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accountability in public affairs. Whether that right was infringed in the present case equally requires consideration of the factual circumstances surrounding the implementation of the project. 41. The Petitioners further challenge the intended acquisition of their land, contending that the constitutional and statutory safeguards governing compulsory acquisition have neither been observed nor commenced. The Respondents maintain that no compulsory acquisition has been initiated and that any land required for the project would, in the first instance, be acquired through voluntary negotiations and private treaty. In African Line Transport Co. Ltd v Attorney General [2011] eKLR, the Court discussed the constitutional safeguards governing compulsory acquisition of private property. Whether those safeguards have been complied with in the present matter is a substantive issue arising from the proposed acquisition process. 42. The Petitioners likewise contend that public land within the locality ought first to be identified and recovered before any privately owned land is considered for acquisition. The Respondents dispute that contention and maintain that the project has been planned in accordance with the applicable legal framework. In Kenya

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Anti-Corruption Commission v Lands Ltd & 7 Others [2008] eKLR, the Court considered questions relating to the administration and recovery of public land. Whether the parcels identified by the Petitioners constitute public land and whether such land ought first to be recovered are matters requiring substantive determination. 43. seek The conservatory and injunctive Petitioners relief further restraining implementation of the proposed project pending the hearing and determination of the Petition. The Respondents oppose the application, contending that the threshold for the grant of such relief has not been met. The principles governing interlocutory injunctions were settled in Giella v Cassman Brown & Co. Ltd [1973] EA 358, while the principles applicable to conservatory orders in constitutional litigation were explained in Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR. Whether the Petitioners have satisfied those principles necessarily depends upon the Court first being satisfied that it is properly seized of jurisdiction. 44. Having found that it lacks jurisdiction to entertain these proceedings, the Court refrains from expressing any view on the merits of the Petition or the Notice of Motion. Those matters properly fall for

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determination by the Environment and Land Court, which will consider them independently upon transfer of these proceedings. 45. The Court is satisfied that the justice of the case will be better served by transferring the proceedings rather than striking them out. Such an order will preserve the parties' respective claims and afford them an opportunity to have the dispute determined on its merits before the court constitutionally vested with the requisite jurisdiction. 46. Accordingly, the Court makes the following orders— 1) The Notice of Preliminary Objection dated 3rd June 2026 is hereby upheld. 2) This Court declines jurisdiction to hear and determine the Petition dated 14th April 2026 together with the Notice of Motion of even date. 3) The Petition dated 14th April 2026 together with the Notice of Motion of even date is hereby transferred to Nyamira Environment and Land Court for hearing and determination. 4) The costs of the Notice of Preliminary Objection shall abide the outcome of the Petition before the Environment and Land Court.

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DELIVERED AT NYAMIRA THIS 2026 30th DAY OF WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Anita For Petitioners - Mr. Opini for Onyoni & Co. Advocates For 1st Respondent - Mr. Marongo for Office of County Attorney For 2nd Respondent - N/A July

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