https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3705

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) (15 June 2026) (Ruling) Neutral citation: [2026] KEELC 3705 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Planning Petition E003 of 2025 JA Mogeni, J June 15, 2026 Between The County Government Of Kiambu 1st Petitioner Jane Wairimu Kariuki 2nd Petitioner Paul Kogi Ndungu 3rd Petitioner Hezron Muiruri 4th Petitioner and The Cabinet Secretary Ministry Of Lands, Public Works, Housing & Urban Development 1st Respondent The Permanent Secretary, Ministry Of Lands, Public Works Housing & Urban Development 2nd Respondent The Hon. Attorney General 3rd Respondent The Inspector General Of Police 4th Respondent Ruling 1.This Ruling is in respect of two Notice of Motion Applications dated 26032025 and 9122025 both filed by the Petitioner. In the first Application, the Applicant seeks the following:1.Spent.2.That pending the inter-partes hearing and determination of this application, conservatory orders be issued restricting the Respondents from enforcing, implementing, or applying the directive in the 1st Respondent’s letter dated 20032025.3.That pending the inter-partes hearing and determination, conservatory orders be issued 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.4.That pending the inter-partes hearing, a conservatory order be issued restraining the 4th Respondent from obstructing or preventing County Staff, Enforcement Officers, and Traders from accessing, trading, and working at the aforementioned markets.5.That pending the hearing and determination of the main Petition, conservatory orders be issued restricting the Respondents from enforcing the directive in the 1st Respondent's letter dated 20032025.6.That pending the hearing and determination of the main Petition, conservatory orders be issued restricting the Respondents from accessing or dispossessing the 1st Petitioner and traders from the specified markets.7.That pending the hearing and determination of the main Petition, a conservatory order be issued restraining the 4th Respondent from obstructing County Staff and Traders at the specified markets.8.That the costs of this Application be provided for. 2.The application is supported by the Affidavit of SOLOMON KAMAU and is predicated upon the following summarized grounds:i.Under the Fourth Schedule (Part B, Paragraph 7) of the Constitution of Kenya, trade development and regulation, including markets, is a function exclusively devolved to County Governments. The National Government has no authority to unilaterally manage these markets.ii.The Respondents violated Articles 6 and 189 of the Constitution, which require consultation and cooperation between the two levels of government. The National Government ignored established joint guidelines and the resolutions of the Council of Governors.iii.On 18032025, the Respondents used armed Police to unlawfully invade and seize Ngoliba Market, vandalizing property and causing a loss of over Kshs. 19,000,000- in public assets.iv.The 1st Respondent issued an unreasonably short notice (two days) for the commencement of works at Karuri, Gakoe, and Maguguni Markets, undermining the County’s mandate to manage trader resettlement and enumeration.v.The Respondents have purportedly awarded tenders (totaling Kshs. 165,015,438-) for markets where the Petitioner had already commenced lawful procurement. This creates a risk of double-funding, legal suits for breach of contract, and a waste of taxpayer money.vi.The Respondents' actions infringe upon:a.The right to property (through the forced takeover of County land).b.Socio-economic rights of traders to earn a livelihood.c.The right to fair administrative action.vii.The Respondents failed to conduct necessary public participation and design reviews with stakeholders, which is a prerequisite for market development. 3.Additionally, the Supporting Affidavit of Solomon Mwaura, the Chief Officer for Trade and Investment, serves to anchor the Petitioners' claim that the Respondents have staged an unconstitutional incursion into devolved County functions. Sworn on behalf of the County Government of Kiambu and its residents, the deponent asserts that under the Fourth Schedule of the Constitution of Kenya, 2010, the mandate for trade development and market regulation is exclusively vested in the County Government. He clarifies that while Article 6 envisions intergovernmental cooperation, such collaboration must respect the institutional integrity of each level. This is underscored by Annexure “SP-1 and SP-2”, which are resolutions from the Council of Governors and correspondence with the Presidency confirming that market development is a devolved function requiring County participation in procurement and supervision. 4.The deponent further avers that a clear modus operandi had been established, where the 1st Petitioner was responsible for architectural designs and technical reviews, as evidenced by Annexure “SP-3, SP-4, and SP-5”. This cooperative framework was initially respected, with the 1st Respondent seeking confirmation on market sites via Annexure “SP-6” and accepting alternative sites proposed by the County in Annexure “SP-7”, a fact corroborated by the status report marked Annexure “SP-8”. 5.However, this relationship soured when the County formally declined to offer Ngoliba, Gakoe, Karuri, and Maguguni Markets for national development as they were already earmarked under the County’s own Procurement Plan as shown in Annexure “SP-9” leading to the current dispute. 6.Mwaura chronicles what he terms as a shocking and flagrant abuse of power beginning on 18032025, when the Respondents allegedly orchestrated a Police-led invasion of Ngoliba Market. He describes the malicious destruction of County assets valued at over Kshs. 19,000,000- an act documented through formal letters of complaint in Annexure “SP-10” and photographic evidence marked Annexure “SP-11”. He states that the Respondents have since maintained an unlawful blockade, preventing traders from earning a livelihood and even obstructing an ongoing water project essential to the residents of Thika and Juja, the details of which are contained in Annexure “SP-14”. 7.The Affidavit further contests the legality of the 1st Respondent’s sudden directive to commence works at Karuri, Gakoe, and Maguguni Markets. The deponent highlights the short two-day notice delivered via the letter in Annexure “SP-12”, which he argues was a deliberate attempt to circumvent due process and usurp County functions. He posits that the Respondents’ actions have led to a double procurement crisis; while the County had already awarded tenders to legitimate contractors such as Bryce General Co. Limited and Rosmi Investments Limited as seen in Annexure “SP-13”, the 1st Respondent has purported to award a conflicting Kshs. 165 Million tender to MS Hypertech Electrical Service Limited without any transparent or competitive process. 8.The deponent maintains that the Respondents have acted ultra vires their constitutional powers, violating Articles 6, 10, 40, 43, and 47. He emphasizes that the National Government cannot unilaterally assume control over devolved functions without explicit County concurrence. By deploying state force to seize property and bypass established procurement laws, the Respondents have not only caused irreparable financial harm but have also subverted the fundamental principles of devolution. Consequently, he prays that the Court protects the functional integrity of the County Government and the socio-economic rights of its traders. 9.The Application is opposed by the Replying Affidavit sworn by Charles Hinga on 25042025 the Principal Secretary for the State Department for Housing and Urban Development. Through the Replying Affidavit the Principal Secretary has filed a robust rebuttal to the Petitioners' claims, seeking to justify the National Government’s intervention in market construction as a matter of social infrastructure mandate. 10.The deponent clarifies that the State Department is tasked with improving grassroots livelihoods through the delivery of various market typologies, ranging from Economic Stimulus Program (ESP) markets to Municipal and Metropolitan facilities. He asserts that this exercise is not a unilateral overreach but a structured initiative executed through a working arrangement with County Governments via the Council of Governors. To ground this position, he refers to Annexure “CH 1 (A)”, a technical report from July 2023 detailing site visits to ESP markets in Kiambu, and Annexure “CH 1 (B)”, a formal communication to the Governor of Kiambu dated 9th August 2024, which he argues demonstrates a history of intergovernmental engagement. 11.The deponent further avers that the construction of the Ngoliba Market is merely one of 28 ongoing ESP projects within Kiambu County, as listed in Annexure “CH 2”. He specifically challenges the narrative of an invasion, as stated by the Applicant averring that the delivery of the Ngoliba facility followed a legitimate trajectory initiated by local stakeholders. He points to a stakeholder meeting held on 17072023 and a subsequent request by the Area Member of Parliament, as evidenced by the letter dated 24072024 marked Annexure “CH 3”. According to the deponent, this proves that the project was a response to community needs rather than an arbitrary seizure of County authority. 12.Regarding the procurement dispute, the State Department maintains that the contract for Ngoliba and Donyo Sabuk Markets was awarded to Ms Enchanting Mombasa Limited through a transparent and open tender process. He emphasizes that the legality of this process remains untarnished as no appeal was ever filed to challenge the award. He produces the contract dated 12032025, marked Annexure “CH 4”, to confirm the contractor's legal standing. The Affidavit warns the Court that the contractor is already fully mobilized on-site; consequently, any conservatory orders halting the works would subject the State to severe financial penalties for idle plant and labor costs that would ultimately be borne by the taxpayers and the residents of Thika. 13.The deponent raises a significant procedural objection, arguing that the Petitioners have jumped the gun by moving to Court. He posits that under the Intergovernmental Relations Act, there are mandatory dispute resolution mechanisms that ought to have been exhausted before the commencement of High-Court litigation. Describing the application and the Petition as fundamentally misconceived and a waste of precious judicial time, he prays that the Court upholds the Respondents' Preliminary Objection, vacates the conservatory orders issued on 28032025, and dismisses the entire suit with costs. 14.The Second Application as stated above is the one dated 9122025 filed by the PetitionerApplicant and brought under Order 9 Rule 9 of the Civil Procedure Rules and Section 5 of the Judicature Act and Articles 19, 20, 22, 23 and 159 (2) (d) of the Constitution of Kenya; Rules 19, 23 & 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 15.This Application for contempt of Court, the PetitionerApplicant moves the Court for the following reliefs:1.Spent.2.That pending the hearing and determination of this application and the Petition inter partes, this Honourable Court be pleased to direct the 1st, 2nd, and 4th Respondents to forthwith withdraw their contractor, Enchanted Mombasa Limited, and any other agents from the Ngoliba Market premises.3.That the Court directs the OCS Ngoliba Police Station, OCPD Kiambu, County Commander Kiambu, and the County Commissioner Kiambu to immediately vacate and cease any involvement or presence within the said premises.4.That the Court issues a Notice to Show Cause directed to the 1st to 4th Respondents, the named Police and administrative officers, and the Directors of Enchanted Mombasa Limited, requiring them to personally attend Court and show cause why they should not be punished for contempt of the orders issued on 28032025, 1042025, and 9042025.5.That the Court cites the aforementioned Respondents and officers for contempt for willfully and maliciously refusing to comply with orders prohibiting them from accessing, possessing, or facilitating construction in Ngoliba Market.6.That the Respondents, the Directors of Enchanted Mombasa Limited, and the named State officers be committed to civil jail for a period of six (6) months, or such other period as the Court deems just, until the contempt is purged.7.That upon determination of the application, the Court holds the 1st, 2nd and 4th Respondents, the State officers, and the Directors of Enchanted Mombasa Limited personally liable for the loss or destruction of the suit property.8.That the Court be pleased to issue any other orders that would serve the ends of justice.9.That the costs of this application be provided for. 16.The application is based on the grounds summarized here and the Supporting Affidavit sworn by Solomon Mwaura the Chief Officer Trade and Investments on 9122025. 17.It is the contention of the Chief Officer that the Court issued clear, categorical, and unequivocal conservatory orders on the 28032025, 1042025 and 9042025, restraining all construction, evictions, or interference with the suit property (Ngoliba Market). 18.That however despite being served and having knowledge of these orders which were confirmed by the Deputy Registrar, the Respondents and their agents specifically the OCS Ngoliba and Enchanted Mombasa Limited have staged an open rebellion against the Court's authority. 19.That on the 4122025 and 5122025 the OCS Ngoliba and the local Member of County Assembly (MCA) led a forceful entry into the property, misinformed the public that the Court case had ended, and resumed construction works. 20.It is the Applicant’s case that senior administrative and Police Officers in Kiambu County have actively shielded the illegal construction works and declined formal service of Court processes, thereby undermining the dignity of the Court. 21.The Applicant contends that if the Respondents are not restrained and punished, the suit property will be destroyed, rendering the main Petition a mere academic exercise and a nugatory pursuit of justice. 22.According to the deponent, in the Supporting Affidavit he depones that the substratum of this dispute, as deponed in paragraph 2, is a Petition challenging the Respondents’ unconstitutional and illegal encroachment upon devolved functions through the unauthorized development and seizure of market properties belonging to the 1st Petitioner. To preserve the subject matter of the suit this Court issued categorical conservatory orders on 28032025, as evidenced by Annexure “SM-1”, which expressly restrained the Respondents and their agents from accessing, dispossessing traders, or interfering with Ngoliba Market. 23.He further avers that the orders issued by the Court remained in force pending an inter-partes hearing. Following initial acts of defiance, further orders were extracted on 31032025 as per Annexure “SM-2”, explicitly barring any construction or change of status of the suit property. These interim reliefs were subsequently extended by the Court on 9042025, a fact reaffirmed in the Court’s Ruling dated 14102025 as seen in Annexure “SM-3”. 24.According to the Deponent he avers that the Respondents were fully and unequivocally served with these penal notices. Proof of service upon the Respondents is marked as Annexure “SM-4A”, with additional formal notification via letters dated 4122025 as shown in Annexure “SM-4B”. Specifically, the OCS Ngoliba Police Station was served on 5122025 as per Annexure “SM-5A”. Notably, as shown in Annexure “SM-5C”, the Judiciary even wrote to the OCS Ngoliba to confirm the authenticity of the orders after he attempted to feign ignorance. 25.Furthermore, the contractor, Enchanted Mombasa Limited, willfully declined service on a technicality regarding a misnomer, yet they remain bound as agents of the Respondents. Service was eventually effected by affixing the orders at the gate of Ngoliba Market, as detailed in the Affidavit of Service marked as Annexure “SM-6C”. 26.In an act of open defiance deponed in paragraph 10, the OCS Ngoliba, in league with the local MCA and the contractor, forcefully stormed the suit property on 4122025 as per Annexure “SM-7”. They proceeded to manufacture false narratives to the public, claiming the orders had lapsed. By 5122025, the contractor had seized the site and commenced construction under the active protection of senior administrative and Police Officers, including the County Commissioner and OCPD Kiambu. This ongoing violation is captured in photographs and videos marked as Annexures “SM-8A, SM-8B, and SM-8C”. 27.Thus, according to the Respondents’ conduct is a calculated strike at the heart of the rule of law, intended to render the main Petition nugatory and bring the judicial process into disrepute. It is, therefore, imperative that this Court intervenes to safeguard its dignity and the integrity of the administration of justice. 28.In further support of the application for contempt the deponent averred that the Respondents have escalated their defiance of the subsisting Court orders by deploying a heavy contingent of Police Officers to the suit property to facilitate and shield their ongoing illegal and unlawful activities. This forceful occupation, as particularized in the photographs marked as Annexure “SM-1” and the video evidence under Annexure “SM-8C”, is being actively orchestrated and overseen by the OCS Ngoliba Police Station, the OCPD Kiambu, the County Commander, and the County Commissioner, notwithstanding that these officers were duly served with the express orders of this Honourable Court. 29.It is the Deponent’s contention that this calculated deployment constitutes a brazen attempt by the Respondents and their subordinates to defeat the course of justice and undermine the judicial process through a show of force, thereby necessitating a firm and decisive intervention by this Court to safeguard the rule of law and the integrity of the administration of justice. 30.There was no response filed by the Respondent to the Notice of Motion Application dated 9122025 despite the State Counsel Mr Motari informing the Court on 10022026 that he would need only 21 days to file responses to both Applications. 31.On 10022026 the Court directed parties to file their submissions to the Applications and at the time of writing this Ruling none of the parties had complied. A Ruling date was reserved for 03062026 on 10022026 when these directions were issued. Analysis and Determination of the Notice of Motion dated 26032025\ 32.I will start by considering the Application dated 26032025. 33.Having considered the pleadings and Affidavits filed by both parties, the fundamental issues for determination in the Notice of Motion Application dated 26032025 (herein 1st Application) is;1.Whether the Petitioner has met the threshold entitling it to conservatory orders restraining the Respondents from enforcing the directive contained in the 1st Respondent's letter of 20032025, taking possession of the specified markets, and, separately, restraining the 4th Respondent from obstructing County staff and traders from accessing those markets.2.Woven inextricably into that inquiry is the antecedent constitutional question of whether the National Government's unilateral intervention in the management and development of Ngoliba, Karuri, Gakoe, and Maguguni Markets constitutes an impermissible incursion into a devolved function, and3.Whether, in the circumstances presented, the dispute is one properly before this Court or one that ought first to have been referred to the dispute resolution mechanisms established under the Intergovernmental Relations Act, No. 2 of 2012. 34.The architecture of the Constitution of Kenya 2010 is unambiguous on the allocation of the relevant function. Part B, Paragraph 7 of the Fourth Schedule vests in County Governments the function of trade development and regulation, which expressly includes markets. That allocation is not advisory; it is a deliberate constitutional choice. Article 6(2) of the Constitution declares the two levels of government distinct and interdependent, while Article 189(1) requires them to perform their functions and exercise their powers in a manner that respects the functional and institutional integrity of the other level. 35.The Respondents' case that the Economic Stimulus Programme markets fall within a national social infrastructure mandate finds no express anchor in the Fourth Schedule, and a government asserting extra-constitutional authority bears a heavy burden of justification, a burden which, at this interlocutory stage, the Respondents have not discharged with sufficient persuasiveness to displace the prima facie constitutional position advanced by the Petitioner. 36.On the question of whether the suit is premature by reason of the mandatory alternative dispute resolution framework under the Intergovernmental Relations Act, the Court notes that Sections 30, 31 and 32 of the Act underscore the need for amicable resolution of disputes of an intergovernmental nature through alternative dispute resolution mechanisms as provided for under Article 159(2), and that judicial intervention shall be a last resort. 37.Section 31 in particular provides that the National and County Governments shall take all reasonable measures to resolve disputes amicably and exhaust any procedures provided under this Act or any other legislation before resorting to judicial proceedings as contemplated by Article 189(3) and (4) of the Constitution. The Respondents lean heavily on this provision to urge that the Petition is misconceived. That argument, however, is not without its limits. The Intergovernmental Relations Act itself provides that where all efforts of resolving a dispute under the Act fail, a party to the dispute may submit the matter for arbitration or institute judicial proceedings. The issue, therefore, is not absolute preclusion but sequence. Where, as is averred here, one party to the intergovernmental relationship has deployed armed Police to physically seize public assets, vandalized property valued at over Kshs. 19,000,000-, blockaded a market, and issued a two-day notice to commence works in markets subject to an ongoing County procurement plan, the Court cannot, with any principled consistency, tell the aggrieved party to sit down and negotiate while the subject matter of the dispute is being dismantled before it. 38.The learned authors of Halsbury's Laws of England, Vol. 10, paragraph 319, as cited with approval in this jurisdiction, remind us that the subject's right of access to the Courts may be taken away or restricted by statute, but that the language of any such statute will be jealously watched by the Courts and will not be extended beyond its onerous meaning unless clear words are used. The Intergovernmental Relations Act contains no language clearly ousting judicial jurisdiction where irreversible harm is actively in progress; the exhaustion requirement speaks to disputes that are capable of being resolved through dialogue, not to ongoing constitutional trespass. 39.It is also noteworthy from Annexures “SP-1 and SP-2” that the resolutions of the Council of Governors and the formal correspondence with the Presidency had already placed both levels of government on notice that market development was a devolved function requiring County participation, yet the National Government proceeded as though those instruments were so much waste paper. 40.A critical look at the evidence reveals a breakdown in the consultation and cooperation framework. Annexure 2 and 3 referenced as “SP-2 and SP-3” are pivotal; they present a documented history where the National Government previously acknowledged the County’s primacy, seeking confirmation on sites and respecting technical reviews. These annexures serve as a paper trail of a functional relationship that existed before the Respondents allegedly bypassed the County’s own procurement plans to award conflicting tenders, such as the Kshs. 165 Million contract to MS Hypertech. By presenting these, the Petitioner demonstrates that the National Government's sudden shift to unilateralism was not just a policy change, but a breach of a settled modus operandi. 41.The prior intergovernmental engagement documented in Annexures “SP-6 and SP-7”, where the 1st Respondent sought confirmation of market sites from the County and accepted alternative sites proposed by it, is in itself evidence that a cooperative framework was understood and acknowledged, only to be abandoned unilaterally. One cannot invoke the machinery of intergovernmental consultation as a jurisdictional bar in Court while simultaneously having shredded that very consultation framework through the use of state coercive power in the field. 42.The Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, at paragraph 86, stated:“Conservatory orders bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as the prospects of irreparable harm occurring during the pendency of a case; or high probability of success in the supplicant's case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes." 43.That formulation of the test liberates the inquiry from the straitjacket of the classical Giella v Cassman Brown principles and anchors it in constitutional values and public interest, which is precisely where a dispute of this character belongs. The Petitioner has established a prima facie case of sufficient cogency: the constitutional allocation of the function is expressly in its favour; there exists documentary evidence of an established cooperative modus operandi that the National Government abandoned; there is photographic and correspondence evidence of physical damage to County assets; there are two sets of contractors simultaneously claiming the same market sites; and the traders of Ngoliba, Karuri, Gakoe, and Maguguni are denied access to their livelihoods while the dispute is live. The constitutional rights engaged are not abstract. 44.Article 40 protects the right to property against arbitrary deprivation, Article 43 guarantees the right to earn a living, and Article 47 entitles every person to fair administrative action. The Respondents' argument that the contractor is mobilized on site and that conservatory orders would occasion financial penalties must be weighed, but it cannot be determinative, for it would be a curious jurisprudence that rewards speed of unlawful mobilization as a defence against constitutional protection. The balance of public interest favors maintaining the constitutional order pending full hearing, and this is consistent with how analogous jurisdictions have approached such tensions. 45.In South Africa, the Constitutional Court and High Courts have consistently reinforced cooperative governance frameworks, holding that unilateral national action in areas of concurrent or exclusive sub-national competence without the requisite consultation violates the constitutional architecture of intergovernmental relations; South Africa's Intergovernmental Relations Framework Act requires, as a precondition to national action affecting provincial or local functions, that the relevant intergovernmental consultation and coordination mechanisms be exhausted, failing which the action may be impugned as constitutionally irregular. 46.Comparing this to global jurisdictions, we see similar creeping centralism in federations like Australia and Canada. In Australia, the landmark "Engineers' Case" Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 which historically shifted power toward the Commonwealth, much like the National Government here attempts to use its spending power to influence state-level functions. Similarly, in the United States, the Commerce Clause has often been the vehicle for federal overreach into state affairs. However, unlike those older constitutions, the Kenyan Constitution of 2010 was specifically designed as a remedial document to prevent the Executive from clawing back power through the back door of development projects. 47.As Halsbury’s Laws of England suggests regarding Administrative Law, any exercise of power must be proportional and within the four corners of the enabling statute; here, if the National Government acts ultra vires the Fourth Schedule, no amount of community benefit can sanitize a constitutional bypass. 48.The Kenyan Supreme Court has been steadfast in protecting the distinctiveness of the two levels of government. In Speaker of the Senate & Another v Attorney-General & 4 Others [2013] eKLR, the Court emphasized that“The Kenyan Constitution ... creates a system where the two levels of government are distinct and interdependent." 49.Furthermore, on the specific issue of encroaching upon devolved functions, the Courts have often leaned on the principle established in Mui Coal Basin Community & 15 others v Minister for Energy & 15 Others [2015] eKLR, where the Court noted that administrative actions must be inclusive:“Public participation is a fundamental pillar of our constitutional democracy." 50.Ultimately, the prayer for conservatory orders is a plea for the Court to act as a constitutional safeguard. If the Court allows the National Government to proceed with works at Ngoliba and Karuri Markets under the guise of an Economic Stimulus Program while ignoring the County’s own awarded contracts like those to Bryce General Co. Ltd, it risks rendering the Fourth Schedule a dead chapter, so to speak. The Petitioner effectively argues that social infrastructure is not a magic wand that disappears the legal boundaries of devolution. In the words of the Courts in similar constitutional Petitions, "The Constitution is not a mere set of rules ... it is a living document that must be protected from even the most well-intentioned overreach." The Court’s decision here will either reinforce the autonomy of the 47 Counties or signal that the National Government remains the senior partner in what was intended to be a marriage of equals. 51.Having regard to all of the foregoing, this Court is satisfied that the Petitioner has demonstrated a prima facie case of constitutional violation with a sufficient likelihood of success, that the public interest in maintaining the functional integrity of devolved government is engaged, and that the prayers sought in the 1st Application, relating to restricting enforcement of the 20032025 directive and preventing dispossession of the Petitioner from the specified markets, are consonant with the constitutional imperative to uphold the architecture of devolution pending the hearing and determination of the main Petition. Analysis and Determination of the Notice of Motion dated 26032025\ 52.The application before the Court presents a grave scenario of alleged contemptuous conduct and a direct affront to the rule of law. The central issue for determination is whether the Respondents, through a calculated strike at the heart of the judicial process, have willfully disobeyed the clear, categorical, and unequivocal conservatory orders issued on 28032025 and subsequently extended. 53.In Kenyan judicial language, this is an inquiry into the dignity and authority of the Court. The pleadings reveal a narrative where state actors, including the OCS Ngoliba and the County Commissioner, are alleged to have staged an open disobedience of the rule of law by shielding a contractor namely Enchanted Mombasa Limited to proceed with construction despite subsisting penal notices. The Applicant contends that such defiance renders the main Petition a nugatory pursuit, as the subject matter being Ngoliba Market is being altered in real-time under Police protection. 54.The law on contempt in Kenya is anchored in Section 5 of the Judicature Act and the Contempt of Court Act insofar as its provisions align with the inherent powers of the Court. For a finding of contempt, the Applicant must prove three elements to the standard of higher than a balance of probabilities: the existence of a valid Court order, the Respondents’ knowledge of said order, and their willful disobedience. 55.Courts in Kenya and internationally have consistently affirmed that obedience to Court orders is not a choice, but a constitutional command essential for maintaining the rule of law. Contempt of Court is used to punish acts that disregard this authority, with apex Courts frequently highlighting that no individual, regardless of their position, is above the law. 56.The rule of law is the bedrock of our democratic society and the very foundation of our Constitution. For the rule of law to be meaningful, Court orders must be obeyed. A party who chooses to disobey a Court order does so at their own peril and must be prepared to face the consequences of their actions. The power of the Court to punish for contempt is not intended to bolster the ego of the individual Judge, but to preserve the authority of the Court and the integrity of the administration of justice. 57.In Kiru Tea Factory Company Ltd vs. Kiru Tea Factory Ltd & 4 Others (20192020): The Supreme Court dealt with complex contempt issues where party representatives continued to act in defiance of status quo orders issued by the Court of Appeal, emphasizing that orders must be obeyed pending final determination. Further, the Supreme Court summoned the Chairman of the Law Society of Kenya (LSK) for contempt regarding comments on a pending Presidential Election Petition, highlighting that high-profile cases should not be decided by public opinion in the case of Raila Odinga v Independent Electoral and Boundaries Commission and 3 Others (2013)KLR-SCK Petition No.5 of 2013 & No. 1 of 2017. 58.Additionally in the case of Cooper v. Aaron, 358 U.S. 1 (1958), the Court reaffirmed that state officials cannot ignore federal Court orders, a key precedent on the binding nature of judicial decision. 59.It is a principle of law that once a Court order is issued, it must be obeyed by all and sundry, regardless of whether a party agrees with it or not, until such a time as that order is set aside or varied. To allow a party to decide which orders to obey and which to ignore would lead to anarchy and the total collapse of the judicial system. 60.In the Environment and Land Court (ELC), where land and property rights are frequently at the center of such disputes. Justice Antony Mrima in the case of Kenya Judiciary Staff Association & 3 Others v Attorney General & 2 Others [2022] eKLR (Petition 381 of 2019) stated thus:“State officers who use their positions or the Police to bypass judicial processes are a threat to the Constitution. The shield of office cannot protect a contemnor from the sword of justice. A person who treats a Court order as a mere scrap of paper must be dealt with firmly to deter others from similar conduct." 61.The pleadings further highlight that the Respondents attempted to evade service through technicalities or feigning ignorance. However, the Supreme Court in In Re The Matter of the Advisory Opinion of the Speaker of the Senate & Another [2013] eKLR noted that the spirit of the Constitution demands institutional integrity. Article 10 on the National Values, Article 159 of Judicial Authority, and Article 160 on the Independence of the Judiciary on the Constitution of Kenya, 2010, collectively mandate that the State and all its organs must respect the finality and authority of the Courts. Specifically, Article 3(1) obligates every person to respect, uphold, and defend the Constitution, which includes the obedience of Court orders issued in its defense. 62.By failing to file a response or submissions despite being given 21 days by the Court, the Respondents have left the Applicant’s averments including photographic and video evidence of the Police blockade unchallenged. In judicial practice, unchallenged evidence is deemed admitted. The Court, therefore, finds that the Respondents’ actions constitute a brazen attempt to defeat the course of justice. To safeguard the substratum of the main Petition and the functional integrity of the County Government, Court orders must be obeyed until discharged. 63.Obedience is a legal command, not a matter of choice for the executive or individuals. Since disobedience undermines peace, security, and the very economic development that the Respondents purport to want to safeguard. I do find that the cited Respondents have disobeyed the issued Court orders. 64.Given the foregoing I do make the following decisions in relation to the Notice of Motion dated 26032025 and 9122025:i.That conservatory orders are hereby issued 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.ii.That a conservatory order is hereby issued restraining the 4th Respondent from obstructing or preventing County Staff, Enforcement Officers, and Traders from accessing, trading, and working at the aforementioned markets.iii.That pending the hearing and determination of the main Petition, conservatory orders are hereby issued restricting the Respondents from enforcing the directive in the 1st Respondent's letter dated 20032025.iv.That pending the hearing and determination of the main Petition, conservatory orders are hereby issued restricting the Respondents from accessing or dispossessing the 1st Petitioner and traders from the specified markets.v.That pending the hearing and determination of the main Petition, a conservatory order is hereby issued restraining the 4th Respondent from obstructing County Staff and Traders at the specified markets.vi.That the costs of this Application will abide the outcome of the main Petition.Furthervii.A Notice to Show Cause is hereby issued directed 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 this Court on 8072026 to show cause why they should not be committed to civil jail for contempt.viii.The 1st, 2nd, and 4th Respondents are hereby directed to forthwith withdraw their contractor, Enchanted Mombasa Limited, and all agents or workers from the Ngoliba Market premises.ix.The OCS Ngoliba, OCPD Kiambu, and the County Commissioner are directed to immediately cease any presence intended to facilitate construction and shall instead ensure that the Court orders are enforced by preventing any further interference with the site.x.The status quo existing prior to the alleged invasion of 4122025 is restored; any structures erected in defiance of the orders dated 28032025 are deemed illegal for the purposes of this suit.xi.The Court reserves the right to hold the named officers personally liable for any public funds wasted or property destroyed during the period of the alleged contempt.xii.The costs of this application are awarded to the PetitionerApplicant, to be paid personally by the 1st and 4th Respondents.It is so ordered. DATED, SIGNED AND DELIVERED AT THIKA VIA MICROSOFT TEAMS VIDEO LINK THIS 15TH DAY OF JUNE 2026.………………………MOGENI JJUDGEIn the presence of:Mr. Ometto for the 1st, 2nd, 3rd and 4th PetitionersMr. Motari for the 1st, 2nd, 3rd and 4th RespondentsMr. Pambu for the Interested PartyMr. Melita - Court Assistant………………………MOGENI JJUDGE