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ELCDismissedNot stated in the judgment (Petition with Notice of Motion dated 26/03/2025)· [2025] KEELC 7187 (KLR)

County Government of Kiambu & 3 others v Cabinet Secretary Ministry of Lands, Public Works, Housing and Urban Development & 3 others (Environment and Land Petition E003 of 2025) [2025] KEELC 7187 (KLR)

Environment and Land Court
14 October 2025
MOMogeni
4,113 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed it can hear Kiambu County's challenge to the national government's takeover of local markets, dismissing the government's jurisdictional objection.

What this practically means

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Executive summary

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The County Government of Kiambu petitioned against the Cabinet Secretary and Permanent Secretary in the Ministry of Lands, the Attorney General and the Inspector General of Police, alleging that on 18/03/2025 the national government forcibly took possession of Ngoliba Market (and threatened Karuri, Gakoe and Maguguni markets) after awarding a construction tender to a new contractor, in violation of the Fourth Schedule (Part B, paragraph 7), which vests market development in county governments, and of Articles 6, 10, 40, 43, 47 and 73. Together with the Petition it sought conservatory orders. The Attorney General raised a preliminary objection contending that the Court lacked jurisdiction because the dispute is an intergovernmental dispute under Article 189 and the Intergovernmental Relations Act, that alternative remedies had not been exhausted, that the doctrines of constitutional avoidance and exhaustion applied, and that Section 16 of the Government Proceedings Act bars injunctions against government. The respondents framed issues on whether the dispute was intergovernmental and whether the Court had jurisdiction; the petitioners relied on authorities holding that the character of the dispute, not party identity, determines classification, and that alternative remedies do not bar constitutional relief where inadequate. The Court, Mogeni J, traced its jurisdiction to Article 162(2)(b) and Section 13 of the Environment and Land Court Act, held the dispute falls within Section 13(2) as concerning interests in land, and that constitutional questions and individual rights violations cannot be adjudicated by the IGRTC. Exhaustion and constitutional avoidance were held inapplicable. The preliminary objection was dismissed with costs in the cause; the Petition and Motion now proceed to substantive hearing.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction over a petition alleging takeover of county markets by the national government despite the intergovernmental dispute resolution framework

Holding

The Court has jurisdiction; the dispute falls within Section 13(2) of the Environment and Land Court Act and raises constitutional questions that the IGRA mechanisms cannot adjudicate.

Reasoning

The Court traced its jurisdiction to Article 162(2)(b) and Section 13 of the Environment and Land Court Act, finding the reliefs sought arise from interests in land. Relying on the Supreme Court's Nicholus decision and other authorities, it held that exhaustion and constitutional avoidance are not absolute where fundamental rights of individuals are alleged to be violated, and that IGRA mechanisms are ill-equipped for such claims.

p. 9
02

Whether the Preliminary Objection is merited

Holding

It is not merited and is dismissed with costs in the cause.

Reasoning

Having found jurisdiction, the Court held the objection, though a genuine pure point of law, failed because the petition raises constitutional issues touching on property and socio-economic rights that only the ELC can determine; the intergovernmental mechanisms cannot adjudicate them.

p. 9

Legal principles established

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  • The existence of an alternative intergovernmental dispute resolution mechanism does not automatically bar a constitutional petition where fundamental rights violations are alleged and the alternative remedy is inadequate.
  • The IGRTC cannot adjudicate constitutional matters related to land and violation of rights; that jurisdiction belongs to the Environment and Land Court.
  • Where a suit primarily seeks to enforce fundamental rights and freedoms not merely framed as bootstraps, it is not barred by the doctrine of exhaustion.

Court orders

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  1. 1.The Preliminary Objection dated (against the Petition and Notice of Motion dated 26/03/2025) is dismissed.
  2. 2.Costs of the Preliminary Objection shall be in the cause.
  3. 3.It is so ordered.
Jurisdiction invoked
Article 162(2)(b) of the Constitution read with Section 13 of the Environment and Land Court Act

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, "County Government of Kiambu & 3 others v Cabinet Secretary Ministry of Lands, Public Works, Housing and Urban Development & 3 others (Environment and Land Petition E003 of 2025) [2025] KEELC 7187 (KLR)", Case Analysis (2025). Not stated in the judgment (Petition with Notice of Motion dated 26/03/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7187/eng@2025-10-14

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