Mwai & 49 others [2025] KEELC 808 (KLR)

Mwai & 49 others (Environment and Land Judicial Review Case E003 of 2024) [2025] KEELC 808 (KLR) (20 February 2025) (Judgment)

Neutral citation: [2025] KEELC 808 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyandarua

Environment and Land Judicial Review Case E003 of 2024

JM Kamau, J

February 20, 2025

(FORMERLY NAIVASHA ELC JR. E003 OF 2021) IN THE MATTER OF THE CONSTITUTION OF KENYA ARTICLE 5, 10, 12, 19, 20, 21, 27 & 176 AND IN THE MATTER OF ORDER 53 RULES 1 OF THE CIVIL PROCEDURE RULES AND IN THE MATTER OF SECTION 8 & 9 OF THE LAW REFORM ACT CAP 26 OF THE LAWS OF KENYA AND IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW PROCEEDINGS FOR AN ORDER OR CERTIORARI AND MANDAMUS AND IN THE MATTER OF THE COUNTY GOVERNMENT ACT SECTION 3(a), (b) & (i), 5(1) & (2), 34, 36, 37 AND IN THE MATTER OF THE COUNTY GOVERNMENTS PROCUREMENT REGULATIONS SECTION 3, 7 & 10 AND IN THE MATTER OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT NO.33 OF 2015 SECTION 33, 34, 44, 46, 47, 51, 68, 65, 66, 69, 73, 77, 78 & 86 AND IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS

In the matter of

Stephen Njuguna Mwai

1st Applicant

Peter Waititu Gatoto

2nd Applicant

Paul Gatoto Kabuthia

3rd Applicant

Andrew Gitau Kamau

4th Applicant

Joseph Mathege Muthungu

5th Applicant

Kariri Watoro Gikonyo

6th Applicant

John Waweru Wainaina

7th Applicant

Peter Kimani Njuguna

8th Applicant

Francis Ndau

9th Applicant

Joseph Kamau

10th Applicant

Geofrey Githinji

11th Applicant

Serah Muthoni Kamau

12th Applicant

Fredrick Karanja

13th Applicant

Joseph Kariuki

14th Applicant

Reuben Muigai

15th Applicant

Hannah Nyakeru

16th Applicant

Kimani Njuguna

17th Applicant

Florence Gachihi

18th Applicant

David Karanja

19th Applicant

Raphael Ndung’u

20th Applicant

Jacob Wang’ombe

21st Applicant

Joseph K Mutonya

22nd Applicant

Philip Waruinge

23rd Applicant

Hilum Mwangi

24th Applicant

Hannah Muthoni

25th Applicant

Joseph Mathenge

26th Applicant

Eliud Ndiritu

27th Applicant

James Kamau

28th Applicant

Esther W. Gachihi

29th Applicant

S Njuguna

30th Applicant

Teresiah Wacunga

31st Applicant

Simon Ndungo

32nd Applicant

Johana Kariuki

33rd Applicant

David Ndiritu

34th Applicant

Tabitha Wambui

35th Applicant

Hannah Wanja Marimbi

36th Applicant

Francis Ndirangu

37th Applicant

James Muthiga

38th Applicant

Simon Njuguna

39th Applicant

Wangari Kamucibi

40th Applicant

Geoffrey Thiong’o Mwangi

41st Applicant

Ceciliah Nyambura

42nd Applicant

Elizabeth Wangui

43rd Applicant

Civilian Kimani

44th Applicant

Joyce Wangari

45th Applicant

Wanjiru Wang’ombe

46th Applicant

Peter Ng’ang’a

47th Applicant

Samuel Maina

48th Applicant

Debra Nduta

49th Applicant

Milka Wairimu

50th Applicant

Judgment

1. Pursuant to leave granted a Notice of Motion dated 6/5/2021 was filed on 7/5/2021 seeking the following prayers: 1. That an Order of certiorari be made to remove into this Honourable court for the purpose of it being quashed the decision by the 1st Respondent to renege on the temporary Plots at Geta Bush market awarded to the Ex Parte Applicants.

2. That an Order of mandamus to compel the Respondents to declare residents as bona fide owners of plots within Geta Bush market.

3. That a declaration that the decision by the Respondent to award new allottees to the detriment of the Applicants is illegal, egregious and unlawful hence void and of no effect.

4. An Order for costs.

2. The Motion was brought under Order 53 Rule 3(1) of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act and all enabling provisions of the law and the same was supported by the Grounds set out in the statutory statement and the Supporting Affidavit of Stephen Njuguna Mwai and Dominick Opiyo Okeyo respectively. In the said Verifying Affidavit, the Applicants deponed that they were allotted Plots at Geta Bush where they have conducted business for over 40 years and have been paying the requisite land rates and “business rates”. They also claimed that there was a fire that brought down the structures in the market on 9/3/2021 but that the following day the Governor, accompanied by the Cabinet Secretary, Trade and Industrialization visited the market area and promised to reinstate the Applicants back but never did so. The market was given to other persons which according to the Ex Parte Applicants, was contrary to the Rules of National Justice. The market space was awarded to people who never participated in the bidding process and that the Respondent’s actions were unlawful, arbitrary, malicious, capricious, unreasonable, discriminatory, actuated by bad faith and based on extraneous considerations against the Applicants’ lawful, legitimate and rightful expectations. Mr. Mwai concludes his Affidavit by saying that the Respondent introduced extravagant fees to be paid by the Private Hospital without notifying the relevant stakeholders. The Ex Parte Applicants attached to this Motion the following documents: - 1. An undated authority by the Ex Parte Applicants to Stephen Njuguna Mwai allowing him to swear the supporting and verifying Affidavits.

2. Licenses from the County Council of Nyandarua.

3. Allotment Letters.

4. Receipts for rate payment.

5. Deed Plans for the plots.

3. On their part, the Respondents through the 1st Respondents’ Chief Officer Industrialization and Trade, Mr. Samson Mweru, filed a Replaying Affidavit sworn on the 10/12/2021. The same was filed in court on 14/12/2021. In the said Affidavit, he deponed that Geta Bush Market was built on land belonging to the County Government of Nyandarua which subdivided part of the land into several plots and issued10 temporary occupation licenses which were allocated and the respective allottees took possession, put up temporary wooden structures and they have been paying the requisite County Rates. Then the County Government constructed a permanent market shed in the remaining parcel of the land. Then on 19/3/2021, the 1st Respondent mapped out some space for the construction of permanent stalls/kiosks. But that later in the evening, a fire gutted the wooden structures thereon in spite of the spirited efforts by the County Government’s engines to put off the same.

4. The County Government later repossessed the burnt plots because they were on a road reserve and the respective allottees were to be relocated and the displaced traders were issued with new plots through balloting. The 1st Respondent has identified space for the said allottees and is in the process of developing a building plan to be adhered to in order to construct fire resistant structures. This was done after bidding and procurement process was duly followed in accordance with the law. To conclude, the Chief Officer depones that this suit is ill-advised, premature and founded on baseless fear as the allottees will “soon” be allocated new spaces and the suit is merely speculative and there is no violation of the Ex Parte Applicants’ rights or fundamental freedoms.

5. Having heard both parties through their respective Affidavits in court, the Respondents do not deny that the Ex Parte Applicants had been allotted plots but they admit that they gave them the plots on what was earmarked for a road reserve which they later repossessed and identified another place for putting up stalls for them. The County Government, however, did not provide to this court a map showing the new development and their contention would just be a way of getting a reprieve from court. They conclude that the Ex Parte Applicants rushed to court before the exercise of allocating them the plots was concluded. I am surprised at the coincidence of the fire that gutted the Applicants’ premises and the discovery of the Respondents that the place was meant for a road reserve and that they were to be relocated. The Applicants have a legitimate expectation to live and earn a living at a place given to them and for which they have been paying rates and business permits. The Respondents had an opportunity to show to the court the plan they have for the Geta Bush Market which they failed to do. The Applicants say that what they used to occupy has now been given to other occupants. This after the Applicant had, of course, established goodwill for the markets. I agree with the Applicants that the Respondent’s actions were unlawful, arbitrary, malicious, capricious, unreasonable, discriminatory, actuated by bad faith and based on extraneous considerations against the Applicants’ lawful, legitimate and rightful expectations. This cannot be allowed to take place in a democratic society and I Order that the Applicants are entitled to prayers 1, 2 and 3 in their Motion dated 6/5/2021 which orders are hereby allowed. They will also have the costs of this suit.It is so Ordered.

JUDGMENT DATED AND SIGNED AT NYANDARUA THIS 20TH DAY OF FEBRUARY 2025. In the presence of:N/A for the ApplicantsMs. Njeri Wanjiru for the RespondentsC/A – Eric………………………….MUGO KAMAUJUDGE