Barawa Members (C.B.O) v Chief & 7 others (Constitutional Petition E031 of 2024) [2026] KEHC 10077 (KLR) (10 July 2026) (Judgment)

Barawa Members (C.B.O) v Chief & 7 others (Constitutional Petition E031 of 2024) [2026] KEHC 10077 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10077 (KLR) Republic of Kenya In the High Court at Mombasa Constitutional Petition E031 of 2024 J Ngaah, J July 10, 2026 Between Barawa Members (C.B.O) Petitioner and Barawa Area Chief 1st Respondent Acc Bamburi Ward 2nd Respondent Elphas Asembo 3rd Respondent Robert Kadenge 4th Respondent Amina Mwatsuma 5th Respondent Mariam Rajab 6th Respondent Dorrin Nzaka 7th Respondent Fanuel Chonga 8th Respondent Judgment Introduction 1.By a Petition dated 28 April 2024, the Petitioner, describing itself as a community-based organisation representing the Barawa community of Utange, Bamburi Ward, Kisauni Sub-County, Mombasa County, seeks declarations that the appointment of eight village elders and the sub-division of Barawa into four administrative blocks by the 1st and 2nd Respondents are unconstitutional, unlawful and/or illegal; an order compelling fresh, participatory elections of village elders; and exemplary damages. 2.The Petition is supported by the affidavit of Benson Mbaru Kadogo sworn on 28 April 2024, in which the deponent swears that he was the elected village elder of Barawa from 19 February 2019 until December 2022, when he was replaced without notice or hearing following an administrative decision to sub-divide Barawa into four blocks and appoint eight elders in his stead. 3.The 2nd Respondent, the Assistant County Commissioner, Bamburi Division, opposes the Petition through a Replying Affidavit sworn by Pamela Makabong'o on 12 July 2024, annexing documentary record of barazas, correspondence and reports spanning 2021 to 2023 relating to the dispute in question. Petitioners’ case 4.The Barawa community has a long-standing customary tradition of electing a single village elder through a competitive, transparent, democratic process. Benson Kadogo was himself elected in accordance with this practice and custom in 2019. In December 2022, and again in July 2023, the 1st and 2nd Respondents purported to sub-divide Barawa into four administrative blocks and to appoint eight village elders (the 3rd to 8th Respondents) without meaningful consultation, in what the petitioners allege to be violation of Article 10 of the Constitution. 5.As a result, Kadogo was removed as village elder without notice, explanation or an opportunity to be heard, and, thus, he contends that his rights under article 47 of the Constitution were violated. To illutstrate his point, he has contended that notice of the decisive baraza of 15 July 2023 was given only one day in advance, rendering the exercise illusory rather than real public participation. 6.According to Kadogo, the resultant list of nominees does not reflect the ethnic and cultural diversity of the community, contrary to Article 232; and that the 1st Respondent's conduct, in disregarding the community's expressed will and in the manner in which dissenting views were received, offends Articles 1, 2, 10, 37, 38, 47, 73, 75, 159, 165 and 196 of the Constitution. 7.That notwithstanding, the Petitioner concedes, that this Court "is not required to reappraise the decision of the appointing authority, nor can it substitute its own determination of who the most suitable or competent candidate would be and that its role is confined to ensuring "fidelity to the law and to the Constitution." Respondents’ case 8.On his part the 2nd respondent has contended that on 8 March 2023, a public baraza was held at which it was agreed, after lengthy deliberation, that Barawa be sub-divided into four blocks for ease of administration and security. On 17 April 2023, the Assistant Chief reported difficulties in actualising that recommendation, following which a further baraza was convened for 15 July 2023. The sensitisation process had been ongoing since April 2023; as the then village elder, Kadogo was responsible for and the leader of the sensitization process. 9.During the baraza of 15 July 2023, conducted by a multi-agency Division Committee (and not by the 1st or 2nd Respondents personally), twenty-four names were proposed for vetting, from which eight elders — two per block, with regard to gender balance — were eventually selected. A report to the Deputy County Commissioner dated 1 August 2023 recorded that Mr Mbaru had, contrary to instructions, continued to sell land and sign land documents in Barawa, and, as a matter of fact, a complaint against him had been made to the police and recorded in the occurrence book. 10.According to the 2nd respondent, the sub-division of a sub-location is a function of the Office of the President under Articles 131(1)(b) and 132(3)(b) and (c) of the Constitution, read with the National Government Co-ordination Act, No. 1 of 2013. Village elders are not a creature of election, and the Petitioner is put to strict proof of any statutory or customary entitlement to elect one. It has also been contended that the Petitioner, being an unregistered community-based organisation, lacks the legal capacity to institute and maintain these proceedings or to purport to represent all members of the affected villages. Analysis and determination 11.The first issue that presents itself for determination is the question whether the petitioners have the requisite locus to institute this petition. There is no doubt that the 2010 Constitution has substantially broadened the doctrine of standing in constitutional litigation. Article 258(1) of the Constitution provides that every person has the right to institute court proceedings claiming that the Constitution has been contravened or is threatened with contravention. In Randu Nzai Ruwa & 2 others v Internal Security Minister & 3 others; Civil Application No. 29 of 2014 [2014] eKLR, the Court held:“Article 258(1) in turn provides that 'every person has the right to institute court proceedings, claiming that this Constitution has been contravened or is threatened with contravention.' In constitutional adjudication therefore, the traditional strictures of locus have been broken to allow every person the capacity to file a constitutional claim... The three Articles give an enlarged view of locus standi, to the effect that every 'person', including persons acting in the public interest, can move a Court of law contesting infringements of any provisions in the Bill of Rights, or the Constitution." 12.This liberal approach is reinforced by the Court of Appeal's holding in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, that:“The constitution today gives standing to any member of the public who is not a mere busy-body or a meddlesome interloper, and who acts in good faith to institute proceedings challenging any violations under the Bill of Rights." 13.I am alive to the line of authority, exemplified by decisions concerning self-help groups and similar unincorporated bodies, that an unregistered association lacking legal personality cannot ordinarily sue or be sued in its own name and must proceed through duly authorised natural persons. That is a legitimate concern where a purported corporate entity has no verifiable existence at all. It does not, however, assist the 2nd Respondent on the facts of this case. 14.The Petition is supported by the personal affidavit of Mr Benson Mbaru Kadogo, sworn in his individual capacity as the community's former, directly-affected village elder, and is accompanied by an "Authority to Plead" executed by the community's chairman and secretary authorising him to act, sign and plead on its behalf. Mr Kadogo is a natural person with a direct, personal and demonstrable interest in the subject matter — his own removal from office — quite independent of any question as to the corporate personality of the Barawa Members C.B.O. I find, applying the enlarged constitutional test, that the Petition is properly before the Court and decline to strike it out for want of standing. 15.Regarding the issue of whether there is any connection between the complaint I have noted that the Petition invokes Articles 1, 2, 10, 38, 47, 73, 75, 159, 165, 196 and 232 of the Constitution, largely in a single undifferentiated block, without linking each Article to a specific act or omission on the part of a specific Respondent. The governing principle was stated in Anarita Karimi Njeru v Republic (No. 1) [1979] KLR 154:“If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed." 16.The Supreme Court, in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, affirmed the continuing relevance of this discipline in the following terms:“Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance." 17.Applying this standard, I find that the Petition and the supporting affidavit disclose sufficiently precise facts to sustain claims under Article 10 (public participation) and Article 47 (fair administrative action), both of which are anchored in specific, particularised events — the notice given for the baraza of 15 July 2023, and the manner of Mr Mbaru's removal. I am not, however, satisfied that the Petition discloses with the requisite precision how Articles 1, 2, 38, 73, 75, 159, 165 and 196 have individually been contravened, these being pleaded only by bare reference without particulars. 18.Turning to the question of public participation, Article 10 of the Constitution entrenches public participation as a national value binding all State organs and public officers in the discharge of public functions. Its constitutional weight was explained in Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others [2015] eKLR, in the following terms:“Public participation is a national value that is an expression of the sovereignty of the people as articulated under Article 1 of the Constitution. Article 10 makes public participation a national value as a form of expression of that sovereignty. Hence, public participation is an established right in Kenya; a justiciable one – indeed one of the corner stones of our new democracy." 19.The qualitative content of that right was elaborated by Odunga J. in Robert N. Gakuru & Others v Governor Kiambu County & 3 others (2014) eKLR:“In my view, public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfilment of the Constitutional dictates." 20.The Court of Appeal, in Kiambu County Government & 3 others v Robert N. Gakuru & Others [2017] eKLR, underscored the primacy the Constitution accords to this value:“The issue of public participation is of immense significance considering the primacy it has been given in the supreme law of this country... The Constitution in Article 10 which binds all state organs, state officers, public officers and all persons in the discharge of public functions, highlights public participation as one of the ideals and aspirations of our democratic nation." 21.The persuasive South African authority of Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11, consistently applied by Kenyan courts, sets the standard by which the adequacy of an opportunity to participate is to be measured:“...all parties interested in [the decision] should feel that they have been given a real opportunity to have their say, that they are taken seriously as citizens and that their views matter and will receive due consideration at the moments when they could possibly influence decisions in a meaningful fashion." 22.I have carefully weighed the rival accounts on this issue. The 2nd Respondent's documentary record — minutes of a baraza held on 8 March 2023, a letter dated 17 April 2023, and minutes of the baraza of 15 July 2023 — establishes that the sub-division of Barawa into blocks was not sprung on the community without any prior engagement; indeed, the Petitioner's own correspondence shows that the idea of block-level management originated from a community leaders' meeting as early as 23 June 2021. To that extent, the bare assertion that the community was "totally excluded" from the process is not made out on the record. 23.What I understand the 2nd respondent to be saying is that the meeting at which the final list of twenty-four names was whittled down and at which the structure of eight elders across four blocks was in substance settled was a culmination of a process in which Mbaru Kadogo participated not only as the then elder of the village but also as a leader of the sensitization and public awareness campaign. This evidence had not been controverted by way of a further affidavit. Based on this information, I am unable to accept that the petitioners or the community they represent was not given sufficient notice to attend the impugned meeting. 24.For the same reason, I am not satisfied that Kadogo’s right to a fair hearing under article 47 of the Constitution was violated. It is true that Article 47(1) of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The Court of Appeal, in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR, explained the content of procedural fairness in the following terms:“The term 'procedurally fair' used in Article 47(1) by a proper construction, imports and subsumes to a certain degree, the common law including rules of natural justice." 25.It is a fundamental and long-settled principle that no person is to be condemned unheard, and that a person facing an adverse administrative decision is entitled to prior notice of the case against them and a fair opportunity to respond before the decision is made. 26.Based on the material before court, I am not satisfied Kadogo was relieved of his duties as village elder without being given an opportunity to be heard. From what I gather, and in particular, the second respondent had sworn that as at the time this suit was filed, the process of electing persons for appointment was underway and that several names had been proposed. To quote the 2nd respondent:19.That the recruitment and appointment process is still on going and has not been completed, thus this Petition is basically filed to frustrate the functions of the Office of the President as is envisaged by the Laws of Kenya. 27.The 2nd Respondent correctly points to Articles 131(1)(b) and 132(3)(b) and (c) of the Constitution, and to the National Government Co-ordination Act, No. 1 of 2013, as the source of the Executive's authority to organise and coordinate the administrative units of National Government at the local level, chiefs and assistant chiefs being deemed, by section 20 of that Act, to be National Government administrative officers. I accept that the decision to reorganise Barawa into four administrative blocks for ease of administration and security is, in principle, a matter squarely within that mandate, and I decline to nullify the sub-division as such. 28.I would add that it was inevitable that upon the reorganisation of Barawa, four village elders would be appointed for each of these administrative divisions. To claim that the Kadogo was entitled to his position as a village elder of a particular sublocation when the sublocation no longer existed does not stand to logic. 29.As to the alternative claim founded on legitimate expectation, the applicable test was set out by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, which held, in substance, that for a legitimate expectation to arise there must be an express, clear and unambiguous promise made by a public authority; that the expectation itself must be reasonable; that the representation must be one the decision-maker was competent to make; and that there cannot be a legitimate expectation contrary to clear provisions of the law or the Constitution. 30.On the material before me, the community's customary practice of electing a single village elder, however long-standing, does not amount to an express promise made by the present administration that it would never restructure local administrative arrangements; nor could such a promise, if made, oust the Executive's constitutional mandate to organise national government administration under Articles 131(1)(b) and 132(3)(b) and (c) of the Constitution. The claim to a substantive legitimate expectation of continued single-elder governance accordingly fails, though this finding does not detract from my finding above on procedural fairness specific to Mr Mbaru's removal. 31.Finally, on the question of diversity, the Petitioner's contention that the list of nominees fails to reflect the ethnic and cultural diversity of the community invokes the values of merit, fair competition and representation of Kenya's diverse communities under Article 232 of the Constitution. This is, in principle, a legitimate consideration in the composition of anybody exercising public functions. However, the Petition and supporting affidavit do not particularise the demographic composition of the Barawa community against which the composition of the nominee list is to be measured, nor do they identify which community or group has been excluded and how. In the absence of such particulars, I am unable to make a finding of a violation of Article 232, though I note that any fresh selection process ordered by this Court ought, as a matter of good administrative practice, to have due regard to this value. 32.For the reasons I have given, I find no merit in the petitioners’ petition; it is hereby dismissed. Parties will bear their respective costs.It is so ordered. SIGNED DATED AND DELIVERED ON 10 JULY 2026NGAAH JAIRUSJUDGE