https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5106

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT THIKA** **ELCL PETITION NO. E012 OF 2024** **ROBERT GAKURU…………………………………...………….1ST PETITIONER** **EZEKIEL MULANDI…………………………………………….2ND PETITIONER** **JOHN K. NAGE…………………………………………………3RD PETITIONER** **(SUING ON THEIR OWN BEHALF AND ON BEHALF OF J.W.A THIKA SUBCOUNTY)** **VERSUS** **COUNTY GOVERNMENT OF KIAMBU………………...….1ST RESPONDENT** **THE CABINET SECRETARY, MINISTRY OF LANDS, HOUSING AND URBAN DEVELOPMENT……………………….……………2ND RESPONDENT** **THE HON. ATTORNEY GENERAL…………………………3RD RESPONDENT** **AND** **THE NATIONAL LAND COMMISSION………..…….1ST INTERESTED PARTY** **RULING** 1. Before me are two Applications dated 12/02/2026 and 26/03/2026. The first Application filed by the 2nd Respondent and second Application is filed by the 1st and 2nd Petitioners. 2. The 2nd Respondent/Applicant seeks the following Orders:- 3. Spent. 4. Spent. 5. Spent. 6. **THAT** upon hearing this Application *inter partes*, this Honourable Court be pleased to review, vary and/or set aside the Ruling delivered on 4th November, 2025, together with all consequential proceedings arising from the Application dated 12th June, 2025 and the Orders issued on 20th May, 2025, and to direct that the Application dated 26th August, 2024 be heard afresh *inter partes*. 7. **THAT** the Court be pleased to allow the Petition dated 26th August, 2024 to be fast-tracked to full hearing instead of interlocutory Applications. 8. **THAT** the costs of this Application be in the cause. 9. The Application is based on the grounds set out on the face of it and Supporting Affidavit of Charles M. Hinga, the Permanent Secretary, State Department for Housing. 10. The Principal Secretary acknowledges that the High Court has issued various orders regarding the construction of an affordable housing project within Kiambu County. He underscores that this project is of monumental national importance under the constitutional mandate of Article 43(1)(b). Having perused the main Petition and Chamber Summons, and upon receiving legal Counsel from the State Counsel on record, the Deponent notes that the Petitioners are seeking various injunctive reliefs concerning the conceptualization, public participation, and Environmental Impact Assessment (EIA) of the project. He highlights, however, that the Petitioners do not fundamentally oppose the project itself, but rather take issue with the manner and mode in which it is being executed. 11. The Deponent asserts that if given an opportunity to be heard, the State Department can bring material evidence to completely dismantle the Petitioners' claims. He reveals that the State Department, acting as the implementing agency for the Affordable Housing Board (AHB), commissioned the development of the affordable housing estate, complete with supporting amenities and infrastructure, at **Thika Musitani / Thika Town** for a total contract sum of **Kshs. 2,189,418,811.80**. To substantiate this, he attaches an excerpt of the formal construction contract, marked as **Annexure "CMH 1"**. 12. He further explains that this development, known as the Thika Musitani Project, is designed to deliver a total of 713 housing units. He provides a meticulous unit breakdown consisting of 40 one-room units, 80 two-room units, 48 three-room units, 77 studio units, 200 two-bedroom affordable units, 95 two-bedroom market units, 105 three-bedroom affordable units, and 90 three-bedroom market units. The complete architectural layout and site designs are produced and attached as **Annexure "CMH 2"**. Upon completion, the project will feature green spaces, landscaping, a children's play area, a borehole, a generator, parking facilities, a boundary wall, external estate roads, drainage, fencing, and complete water and power reticulation. The project was initially slated for completion by 26/01/2026. 13. The Deponent states that the project was initiated following Presidential Directive No. 9 issued on **7/12/ 2022**, during the commissioning of the Sustainable Neighborhood Programme (SNP). That the President directed the State Department to collaborate with national government agencies and county governments to identify land for the Affordable Housing Programme (AHP). 14. Pursuant to this directive, joint engagements gained momentum in 2024 between ministerial officers and their Kiambu County Government counterparts. This collaborative effort led to the identification of the Thika Musitani land, legally known as **Thika Municipality Block 11/343**, which falls under the jurisdiction of the County Government of Kiambu 15. The Deponent notes that on **18/10/2023**, the Kiambu County Executive Committee Member (CECM) for Lands, Housing & Urban Development formally wrote to the Principal Secretary, confirming that the joint technical teams had completed the beaconing process for three designated parcels, including the Thika Musitani site. A copy of this formal communication is annexed as **Annexure "CMH 3"**. 16. He further avers that this correspondence confirmed that the land belonged to the Thika Municipality, had no tenants on-site, and that stakeholders in the surrounding estates had been comprehensively sensitized. To refute the Petitioners' claims of exclusion, the Deponent attaches the official minutes and the public participation report dated **10/09/2023**, marked as **Annexures "CMH 4 (a)" and "CMH 4 (b)"**. He points out with that the officials of the Petitioners' estate (Madaraka Estate), led by their chairman, Robert Mwangi, are explicitly recorded as active participants in those minutes, and he prays that the Court takes judicial notice of this fact. 17. The Principal Secretary denies the allegation that he was ever served with the Court Order dated **20/05/2025** (attached as **Annexure "CMH 5"**), or that he intentionally disobeyed it. He affirms that he is a law-abiding citizen who respects the rule of law. 18. He states that he was recently shocked to be advised by State Counsel that the Court delivered a Ruling on 4/11/2025, finding him in contempt of Court and requiring his personal appearance to show cause why he should not be punished. This contempt finding arose from an *ex parte* Application dated 12/06/2025, which accused him of violating the May 2025 order. The adverse finding of contempt and the order to appear are attached as **Annexure "CMH 6"**. 19. The Deponent categorically states that neither the Applications, the interim orders, nor the subsequent pleadings were ever brought to his personal attention. He argues that if any service was dropped at the Ministry's registry, it never reached his desk to enable him to instruct Counsel to respond. He further depones that condemning him without an opportunity to be heard constitutes a gross violation of his right to a fair trial as enshrined under **Article 50 of the Constitution of Kenya**. He urges the Court to intervene, exercise its inherent powers to satisfy the ends of justice, stay the impending contempt proceedings, and set aside the adverse orders so that the matter can be ventilated afresh *inter partes*. 20. That no prejudice will be suffered by the Petitioners if the orders are granted; rather, it will allow the Court to receive full, accurate material facts necessary to make a fair, proper, and informed final determination of the suit. 21. The Application is opposed by the Petitioners/Respondents vide a Replying Affidavit sworn by Ezekiel Mulandi, a resident of Thika and a designated official of Jamofastar. Swearing the Affidavit with the explicit authority of his co-officials, he deposes in opposition to the State's Applications, seeking to demonstrate that the 2nd Respondent; the Principal Secretary has been fully aware of the ongoing litigation since its inception and has willfully defied the Court's jurisdiction. 22. He asserts that the suit property legally described as **Thika Municipality Block 11/343**, where the government is currently implementing its affordable housing scheme via the *Boma Yangu Programme*, remains an active, ongoing construction site. He points out that this continued development is a flagrant violation of a clear restraining Court Order issued by this Court on 20/05/2025. 23. It is the deponent’s contention that the 2nd Respondent was explicitly made aware of the Court Order dated 27/05/2025. He produces a copy of the formal order clearly showing the 2nd Respondent's official institutional receiving stamp dated **28/05/2025**, which is annexed to the Affidavit as the copy of the said order bearing the stamp of the 2nd Respondent. 24. He further notes that the Honourable Attorney General who acts as the *de jure* legal Counsel for the 2nd Respondent was duly served with the same Court order and appended her official institutional receiving stamp on 30/05/2025. This stamped document is attached to the Affidavit as the copy of the said order bearing the Honourable Attorney General's stamp acknowledging receipt. 25. The deponent thus states that it his firm belief that the Respondents are being deeply untruthful and are actively stretching the truth by claiming non-service when the order was duly served upon the required parties as directed. 26. The Deponent outlines that the State's pattern of ignoring Court processes goes back to the very beginning of the lawsuit in 2024. He notes that the original Notice of Motion Application dated **26/08/ 2024**, along with the main substantive Petition, were fully served upon the 1st Respondent, the 2nd Respondent, and the Attorney General on **23/09/2024**. 27. That following the service he highlights that all three state parties appended their respective institutional receiving stamps onto the documents, acknowledging safe receipt of both the substantive Application and an accompanying Court order dated 28/08/2024. A copy of stamped Application package is produced and attached as the copy of the said received order and Application. 28. Addressing the Principal Secretary’s defense in clause 4 of his Notice of Motion dated 12/02/2026 where the P.S. admitted his office might have been served but claimed it was never brought to his personal attention, Mr. Mulandi argues that this argument holds no water under civil procedure rules. He deposes that it is never the duty of a Petitioner to manage the internal registry routing of a government ministry; once service is successfully delivered and stamped at the official ministerial offices, the Petitioner’s legal obligation is completely satisfied. 29. Mr. Mulandi in the Replying Affidavit characterizes the 2nd Respondent’s actions as a blatant, continuous refusal to engage with the judicial system. He points out that the Principal Secretary deliberately chose not to enter an appearance despite being given numerous opportunities by the Court over a span of nearly two years since August 2024. He notes with concern that the 2nd Respondent only rushed to Court once a real threat to his personal liberty arose, throwing various excuses at the Court in a desperate hope that one might stick and absolve him of legal guilt. 30. He implores the Court not to tolerate or excuse the 2nd Respondent's conniving behavior, warning that allowing a senior government official to slide past clear proof of service would set a highly dangerous precedent for the rule of law. 31. Emphasizing the foundational principle that nobody is above the law, Mr. Mulandi argues that the 2nd Respondent’s long-term failure to participate was a calculated, intentional strategy designed to drag out the case and escape liability by crying foul later. He prays that the 2nd Respondent be severely punished for contempt to reinforce the solemn authority of the High Court and to serve as a deterrent example to other Court users who treat judicial orders with defiance. 32. Additionally, another opposition is vide the Further Affidavit (Supplementary Affidavit) sworn on 9/03/2026 by the Petitioner’s Counsel **Kennedy Mkinyanjui**, who has the conduct of the matter on behalf of the 1st and 2nd Petitioners. He opposes the Applicants’ prayer to have the original Application dated 26/08/2024, heard *de novo*. 33. The Deponent strongly contends that the Applicants' failure to participate in the earlier Court proceedings was a deliberate, calculated defense tactic designed to let them stay away and later claim ignorance to demand a fresh hearing. He points out that the Principal Secretary's Application completely fails to meet the strict statutory thresholds required for a review under Kenyan law, as the Applicants have neither demonstrated the discovery of any new and important matter or evidence that could not be produced at the time through due diligence, nor have they pointed out any mistake or error apparent on the face of the record. Invoking the equitable maxim that he who comes to equity must come with clean hands, the Deponent reminds the Court that judicial bodies do not operate at the whims of a Principal Secretary and that Court orders are mandatory directives rather than optional requests. 34. The Deponent characterizes the Principal Secretary’s reliance on a past public baraza meeting as an outright falsehood, noting that these exact documents were previously introduced by the 1st Respondent (the County Government) and were already judicially determined by the Court to be legally insufficient in its Ruling dated 20/05/2025. 35. He asserts that public participation under Articles 10 and 108 of the Constitution of Kenya must be a genuine, inclusive process rather than a superficial, administrative box-ticking exercise. He notes that the Applicants have failed to produce any public memoranda or fresh evidence to back their claims. Furthermore, the Deponent alleges that the Principal Secretary was fully aware of a binding, pre-existing Memorandum of Understanding (MOU) over that specific parcel of land between the County Government of Kiambu and an entity known as JAMOFASTAR, but intentionally concealed that material fact from the Court. 36. He implores the Court not to allow the Applicants to hijack and derail the progression of the trial simply because they have belatedly realized the gravity of the suit. He insists that the State officers must face the legal consequences of their actions and be held in contempt for violating the Court Order issued on **20/05/2025** (which was dated 27th May, 2025). To reinforce this point, he attaches a formal copy of the said ruling, which clearly bears the official reception stamps of all the Respondents, marked as **Annexure "KMK-1"**. 37. The Deponent accuses the Applicant of outright dishonesty, asserting that construction on Thika Municipality Block 11/343 continued unabated long after the stop orders were served. He references an official Site Visit Report and the findings of the Deputy Registrar, which collectively prove that the multi-billion-shilling construction only ground to a halt a few days prior to or on the actual day of the judicial site visit, purely because the imminent risk of penal servitude (imprisonment for contempt) had become real. He dismisses the Principal Secretary’s reliance on the **Kshs. 2,189,418,811.80** contract value as an attempt to hide behind a massive financial figure to force an inference of seriousness, when in reality, the project's ongoing execution was a matter of public notoriety heavily featured across broadcast news and social media platforms like X. He prays that the Application dated 12/02/2026 be dismissed with costs awarded to the Petitioners. 38. In a further Affidavit sworn by the Principal Secretary Charles Hinga on behalf of the 2nd Respondent dated 21/03/2026, the Principal Secretary (herein P.S) contends that it is procedurally incompetent for a party’s Advocate to depose to primary evidentiary facts at any stage of a lawsuit. By stepping out of his privileged position at the Bar and into the witness box, the Advocate invites cross-examination on his depositions, making it impossible to properly discharge his dual duties to the client and the Court. 39. Furthermore, the P.S. deposes that the Advocate's Affidavit is fatally defective because it flagrantly violates the provisions of Order 19 Rule 3 of the Civil Procedure Rules by failing to disclose the specific sources of his information and the grounds for his beliefs. To support his position, he cites the landmark Supreme Court of Kenya presidential election decision, **Raila Odinga & Others v. William Ruto & Others (with the Law Society of Kenya as Amicus Curiae) [2022] KESC**. He states based on the decision cited that judicial bodies cannot countenance situations where officers of the Court swear to contentious facts on behalf of clients, as they run the risk of unknowingly swearing to falsehoods. 40. He also points out that when the matter previously came before the Court for directions, the Petitioners' own Counsel informed the Court that the 1st Petitioner, **Mr. Robert N. Gakuru** had passed away. While the suit survives through the remaining parties, the P.S. points out that it is impossible that the Counsel was instructed by the 1st Petitioner if he is deceased. 41. He further adds that the 3rd Petitioner disassociated himself from the case and his name was struck off, leaving only Ezekiel Mulandi, as the living party who could have legally executed a further Affidavit. Thus, he avers that because Mr. Mulandi failed to annex any written authorization granting his lawyer the power to depose to facts on his behalf, and because there is a total failure to identify the drawing Counsel at the jurat of the Affidavit as required under Section 35 of the Oaths and Declarations Act (Cap 15), the entire document is an absolute nullity (*nullity ab initio*) and must be disregarded in its entirety. 42. He maintains his stand that the substantive trial progressed behind his back. He reiterates that he was never served with the core pleadings and was completely unaware of the proceedings until after the fact, denying the Advocate’s allegations that he is attempting to hijack the trial. 43. He affirms his absolute respect for the rule of law and judicial directives. He denies taking any action to disobey the Court. To vindicate his position, he relies on the official Court Site Visit Report, highlighting that the independent report explicitly confirms that the contractor in physical possession of the site had already been formally instructed to vacate the land. As a consequence of this compliance, the report verified that absolutely no construction activity was occurring, and no personnel were on site on the actual date of the judicial visit. 44. He avers that he is fully prepared to tender concrete evidence demonstrating that the local community and stakeholders were heavily involved, thoroughly informed, and raised no objections to the development. He concludes by stating that if the Court ultimately finds any procedural gaps in the project's setup, it retains full equitable jurisdiction to issue post-judgment injunctuous reliefs to correct them without derailing the housing initiative. He therefore prays that his Application be allowed. 45. The Application was canvassed by way of written submissions and the parties filed their written submissions. The Applicant’s submissions are dated 2/03/2026 and the Petitioners/Respondents are dated 11/03/2026. I have read and considered the well-researched submissions which have referred the Court to the decisions made in support of their positions. 46. I now turn to the Notice of Motion Application dated 26/03/2026 brought under Section 1A, 1B, & 3A of the Civil Procedure Act (Cap 21), Section 13 of the Environment and Land Court Act, 2011, Order 51 Rule 1 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law where the Applicant seeks the following: 47. Spent. 48. **THAT** this Honourable Court be pleased to allow this Application as prayed. 49. **THAT** the costs of this Application be provided for. 50. The Application is based on the grounds of the face of it and support by the Affidavit sworn by Kenedy Kinyanjui. The Deponent avers that on the 20/05/2025, this Honourable Court issued an order directing the total halting of construction works on the suit property described as Thika Municipality Block 11/343. Pursuant to a subsequent order of the Court, a site visit was conducted on the 4/03/2026, and a report was duly compiled which clearly demonstrated non-compliance by the Respondents. Following the said site visit, the Respondents' agents vacated the suit property on the very same day and left a physical notice indicating compliance with the Court order, a photograph of which is annexed to the Affidavit and marked as **"KK1"**. 51. He further states that while the construction site remained closed thereafter, the contractor, with blatant disregard and outright impunity, forcefully re-entered the suit property on the 25/03/2026 to resume construction works. In confirmation of this offensive re-entry, the Deponent has annexed photographic evidence of construction workers actively operating on the site between the 25th and 26th days of March 2026, which are marked as **"KK2"**, and further intimates that real-time video evidence of the infraction will be adduced at the hearing of the Application. It is the Deponent’s case that the Respondents have deliberately failed to enforce strict adherence to the existing Court orders or have lost regulatory control over the site. Consequently, there arises an urgent and critical need to place the suit property under the strict supervision of the Officer Commanding Station (OCS) Thika to ensure absolute compliance. 52. According to the Deponent he condemns the ongoing construction, characterising it as an act that reeks of impunity, belittles the dignity of the Court, violates the principles of natural justice, and undermines the Constitution of Kenya. The Deponent asserts that the Respondents are exploiting the fact that the Court has scheduled the ruling for the Contempt of Court Application for the 9/07/2026, engaging in sharp practice with the intention of later raising spurious defenses of miscommunication or bureaucratic red tape while the Petitioners continue to suffer irreparable harm. To safeguard the majesty of the Judiciary as the final bastion of justice for the citizenry, the Deponent urges the Court to frown upon this trend and issue warrants of arrest against any person found trespassing on the suit property. 53. It is the Deponent’s averment that the Respondents’ actions constitute a material breach of constitutional rights and Court orders, and that unless this Honourable Court intervenes to re-affirm its authority, the residents represented by the Jamofastar Welfare Association will suffer irreparable loss and damage, hence praying that the Application be allowed. 54. The 1st Respondent filed Grounds of Opposition in response and opposition to the Petitioner/Applicant’s Notice of Motion dated 26/03/2026. In the Grounds of Opposition, he raises several fundamental legal grounds, primarily contending that the Application and its accompanying Supporting Affidavit sworn by Kenedy Kinyanjui are incurably defective, incompetent, and wholly bad in law. As a matter of fact and substance, the 1st Respondent avers that they are neither in possession nor in regulatory control of the suit property, the same having been lawfully allocated to the National Government, the 2nd Respondent, for the execution of a public housing project designated as the ***"Bustani Affordable Housing Project."*** 55. Consequently, the 1st Respondent maintains that the coercive orders sought by the Applicant cannot competently issue against them, particularly because the construction works alleged to be ongoing are not being undertaken by the 1st Respondent, which exercises absolutely no authority, control, or operational mandate over the subject property. 56. On points of law, the 1st Respondent raises a formidable objection to the competency of the Supporting Affidavit dated 26/03/2026, positing that it is incurably defective as it is sworn by Kenedy Kinyanjui, who is the Advocate on record for the 1st and 2nd Petitioners. The 1st Respondent asserts that this practice directly offends the statutory proviso of Order 18, Rule 3(1) of the Civil Procedure Rules, placing reliance on the judicial precedent of **Republic v Attorney General [Sued for and on behalf of the Ministry of Lands] & 2 Others Ex Parte South and Central [Thika] Investments Limited [2015] KEHC 7560 (KLR)**. It is argued as trite law that an Advocate, acting as an officer of the Court, is legally incompetent to swear an Affidavit touching on highly disputed facts, as Counsel cannot simultaneously double up as a witness in the same cause, rendering any Affidavit sworn under such circumstances legally defective and worthless, a principle supported by the landmark **East African Court of Appeal decision in Life Insurance Corporation of India v Panesar [1967] EA 614.** 57. Furthermore, the 1st Respondent contends that the present Application is premature, misconceived, and a gross abuse of the due process of the Court. This is because the Petitioner/Applicant is seeking parallel arrest orders in the instant Application, notwithstanding the fact that the underlying committal orders were explicitly suspended by this Honourable Court pending the delivery of a formal ruling scheduled for the 9/07/2026. The 1st Respondent underscores that if the orders sought are granted, they would occasion undue hardship and severe prejudice, as the suit property has since changed hands to the 2nd Respondent, making any orders directed against the 1st Respondent incapable of practical enforcement or legal execution. 58. Ultimately, the 1st Respondent states that the Petitioner/Applicant has failed to satisfy the threshold for injunctive relief by establishing a prima facie case, a demonstration of irreparable harm, or showing that the balance of convenience tilts in their favour. There being no annexures attached to these Grounds of Opposition, the 1st Respondent concludes that the Application is entirely devoid of merit and prays that the same be dismissed with costs. 59. The 2nd Respondent did not file any response to this Application. The parties filed their written submissions which have been considered. 60. The 1st Respondent joins issue with the 2nd Respondent/Applicant through a Replying Affidavit sworn by John Maingi, the Acting County Secretary of the 1st Respondent, The County Government of Kiambu. He contends that the Petitioner's Application is an absolute non-starter, fatally defective, and a gross abuse of the Court process. Since according to him the Application fails to specify or itemize the exact acts or omissions committed by the 1st Respondent and its officers that supposedly defy the Court Order issued on 20/05/2025. 61. Additionally, he asserts that neither the baseline Court Order of 20/05/2025, nor the subsequent contempt Application ever personally served upon the 1st Respondent’s County Executive Committee Member (CECM) for Land, Housing, Physical Planning & Urban Development. Yet it is compulsory under the Kenyan law for one to be served personally where they are accused of contempt. 62. With regard to what is happening on the ground, the 1st Respondent the Acting County Secretary clarifies the structural nature of the project. He deposes that while the 1st Respondent technically owns the underlying land parcel **THIKA MUNICIPALITY BLOCK 11/343** the Affordable Housing development being constructed there under the *Boma Yangu Programme* is entirely a National Government initiative. 63. He points out that the 1st Respondent is not financing the project, is not executing excavations, is not erecting buildings, and is not carrying out any physical construction activities on the site. He reveals that the 1st Respondent officially handed over the site prior to the institution of this suit. Consequently, the 1st Respondent is no longer in physical possession or control of Thika Municipality Block 11/343. 64. He however terms the Application as being frivolous, vexatious, and a fishing expedition because the Applicant has failed to produce concrete evidence demonstrating any contemptuous actions by the CECM or any other officer of the County Government. **Analysis and Determination** 1. Having regard to the pleadings, Affidavits, rival submissions, and the Site Visit Report placed before this Court, the following emerge as the key issues for determination in the two Applications: 2. On the Application dated 12/02/2026; 3. Whether the 2nd Respondent was properly served with the Court Order dated 20/05/2025 and the consequential pleadings such that the finding of contempt was properly grounded. 4. Whether the contempt finding made in the Ruling of 4/11/ 2025 was arrived at in violation of the 2nd Respondent's right to a fair hearing under Article 50 of the Constitution of Kenya, having allegedly been condemned unheard. 5. Whether the 2nd Respondent has satisfied the legal threshold for review, variation, or setting aside of the Ruling dated 4/11/2025 under the applicable provisions of the Civil Procedure Rules. 6. Whether the Further Affidavit sworn by the Petitioners' Advocate, Kennedy Mkinyanjui, is competent and admissible in law, or whether it constitutes a nullity for offending Order 19 Rule 3 of the Civil Procedure Rules and the provisions of Section 35 of the Oaths and Declarations Act. 7. On the Application dated 26th March 2026 by the 1st and 2nd Petitioners: 8. Whether the findings of the Site Visit Report dated 4//03/2026 specifically the fresh vehicle tyre marks, freshly applied paint, and recently offloaded cement bags constitute sufficient evidence of continued violation of the Court Order of 20/05/2025. 9. Whether the re-entry onto the suit property by the contractor between 25th and 26th March 2026 as evidenced by photographic annexures constitutes a fresh and continuing act of contempt warranting further coercive orders of this Court. 10. Whether coercive enforcement orders, including placement of the suit property under the supervision of the Officer Commanding Station, Thika, and warrants of arrest against trespassers, are legally competent and proportionate in the circumstances. 11. Whether the 1st Respondent, having divested itself of possession and control of the suit property to the 2nd Respondent, can competently be the subject of the coercive orders sought in the Application dated 26/03/2026. 12. And overall issue is whether, in the face of a multi-billion-shilling national housing project founded on a Presidential Directive, this Court ought to subordinate the constitutional imperatives of the right to housing under Article 43(1)(b) to the procedural and substantive grievances raised by the Petitioners or whether the rule of law, the sanctity of Court orders, and the right to fair process must prevail regardless of the magnitude of the project. 13. Having considered the rival contentions and the material placed before this Court, I am persuaded that the determination of the two Applications must proceed against the backdrop of the incontrovertible findings made during the judicial site visit conducted on 4/03/2026. The Court notes that the Site Visit Report, compiled by the Deputy Registrar as an officer of this Court, disclosed the presence of fresh vehicle tyre marks leading onto the suit property, freshly applied paint on structures, and cement bags that had been recently offloaded on site. These are not matters of inference or conjecture they are objective, physical findings made by a Court officer acting in the discharge of a judicial mandate. 14. The significance of this finding cannot be gainsaid; the Order of this Court dated 20/05/2025 directed an absolute halt to all construction activity on Thika Municipality Block 11/343, yet the physical evidence on the ground told a different and most troubling story. The 2nd Respondent's reliance on the contractor's belated vacation of the site and the posting of a compliance notice must be weighed against this finding, and when so weighed, the Court finds that such purported compliance was nothing more than a theatrical exercise prompted by the imminence of penal consequences rather than genuine respect for the Court's authority. In the celebrated decision of **Hadkinson v Hadkinson [1952] 2 All ER 567, Lord Denning MR** pronounced with clarity that; ***"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a Court of competent jurisdiction, to obey it unless and until that order is discharged."*** 1. This Court aligns itself fully with that principle, which has been adopted and applied consistently in this jurisdiction. 2. On the question of the Application dated 12/02/2026 in which the 2nd Respondent seeks to set aside the Ruling of 4/11/2025 and the consequential contempt finding, this Court has carefully considered the institutional stamps placed on the Court Order dated 27/05/2025 bearing the 2nd Respondent's official receiving stamp dated 28/05/ 2025, as well as the Attorney General's receiving stamp dated 30/05/2025. The law has long settled the question of what constitutes proper service upon a government Ministry or Department. 3. The argument by the Principal Secretary that documents were dropped at the Ministry's Registry but never reached his personal desk is, with respect, a plea that collapses under the weight of the incontrovertible documentary evidence produced by the Petitioners. The law does not require a Petitioner to personally escort Court papers through the internal administrative labyrinth of a Government Ministry after delivering them to the official registry and obtaining a receiving stamp. To hold otherwise would be to render service upon government institutions a practical impossibility and to give a premium to internal administrative neglect as a shield against judicial accountability. 4. However, regarding the second Application, a serious procedural frailty emerges. The Supporting Affidavit was sworn by Mr. Kenedy Kinyanjui, the Petitioners' Advocate on record, who attempts to depose to primary, highly contested factual matrices regarding site intrusions. 5. Regarding the competence of the Further Affidavit sworn by Counsel Kennedy Mkinyanjui, the Court notes the objection raised by the Respondents with some sympathy. It is trite law that an Advocate ought not to place himself in the invidious position of being both Counsel and witness in the same proceedings. It is deeply entrenched in our jurisdiction that an Advocate cannot straddle the bar and the witness box simultaneously. As Ringera J. (as he then was) classically pronounced in **Republic v Attorney General ex parte South and Central (Thika) Investments Limited [2015] KEHC 7560 (KLR):** ***"An Advocate is an officer of the Court whose primary duty is to assist the Court in the administration of justice. He cannot, without compromising his independence and objectivity, become a witness to contentious facts in the very matter he conducts. Where Counsel chooses to depose to primary facts rather than matters of information and belief within the strict confines of the rules, the Affidavit so sworn is fundamentally defective and must be struck out."*** 1. Similarly, on the legal worth of such Affidavits, Newbold P. in **Life Insurance Corporation of India v. Panesar [1967] EA 614** observed: ***"It is a rule of practice, and indeed a rule of propriety, that an Advocate should not give evidence in a case in which he is appearing as Counsel... If an Advocate files an Affidavit which is not confined to facts within his own knowledge but contains contentious matters of fact, he places himself in an impossible position, and the Court will regard such an Affidavit as worthless."*** 1. However, the Court is satisfied that the substantive evidentiary record, including the institutional stamps, the site visit report, and the depositions of Mr. Ezekiel Mulandi, are sufficient to ground the findings herein and that the weight to be attached to the Counsel's Affidavit goes to its probative value rather than its admissibility as a threshold question. 2. On the Application dated 26/03/2026, the photographic evidence annexed as **"KK2"** depicting construction workers actively on site between 25th and 26th March 2026 barely three weeks after the judicial site visit had confirmed the physical signs of resumed activity compounds the Court's concern. The 1st Respondent's Grounds of Opposition raise the valid point that the suit property has since been transferred to the 2nd Respondent and that the 1st Respondent exercises no regulatory control or operational authority over the site. The Court accepts this position in so far as it concerns the 1st Respondent and is satisfied that injunctive or coercive orders cannot properly lie against a party that has been divested of possession and control. 3. However, this position is not available to the 2nd Respondent, who is the implementing agency for the Affordable Housing Board and who is in full operational command of the project and the contractor. Thus, the prayer for placement of the site under the supervision of the Officer Commanding Station, Thika, is one that this Court considers both necessary and proportionate in the circumstances. The Court's orders must have teeth; otherwise, they become pious recommendations that parties may comply with or ignore at their convenience. In **Econet Wireless Kenya Limited v Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828,** the High Court underscored the principle that ***"A Court order is not a request; it is a directive backed by the full coercive authority of the state,"*** and it is in that spirit that this Court now acts 1. On the overarching issue, it cuts to the very constitutional heart of this matter. The 2nd Respondent has throughout his Affidavit sought to clothe the Thika Musitani Project in the garb of national importance, invoking the Presidential Directive of 7/12/2022 and the constitutional anchor of Article 43(1)(b), as though the sheer weight of the contract sum of Kshs. 2,189,418,811.80 and the promise of 713 housing units could, by themselves, dissolve the jurisdiction of this Court or immunize the project from judicial scrutiny. 2. The Court appreciates that the right to housing is a justiciable socio-economic right under the Constitution and that the State bears an obligation of progressive realization thereof, but it is a foundational principle of constitutional democracy that no right exists in isolation, and the right to housing cannot be pursued at the expense of the right to fair process, public participation, and the rule of law, all of which are equally entrenched in the same Constitution. It is settled beyond argument that a Presidential Directive, however weighty in policy terms, does not and cannot override the Constitution, nor can it serve as a license to bypass judicial orders issued by a Court of competent jurisdiction; in this regard, the Court is reminded that Article 10 of the Constitution binds all State organs and State officers, including the Executive, to the national values of the rule of law, participation of the people, and accountability. 3. The Petitioners do not, on the face of their pleadings, oppose the concept of affordable housing as was submitted by the Applicant; their grievance is directed at the manner and mode of execution, which they contend has trampled upon their rights to participation and to a clean environment, and it is precisely that distinction that makes this not a case of judicial obstruction of development but rather a case of judicial superintendence of constitutional compliance. This Court therefore finds that the magnitude of a government project, the political prominence of its origins, and the financial investment already sunk into its implementation are not, in law or in equity, sufficient grounds upon which this Court should abdicate its constitutional mandate to enforce its own orders and uphold the rule of law, for to hold otherwise would be to render the Courts irrelevant whenever the Executive wraps its conduct in the language of public interest. 4. Ultimately, both Applications are partially successful. The 2nd Respondent’s Application to set aside the entire proceedings is declined, but the request to fast-track the substantive suit is highly meritorious to bring an end to the perineal piecemeal interlocutory Applications. Conversely, while the Petitioners' motion is procedurally flawed due to the Advocate’s Affidavit, the Court invokes its inherent equitable jurisdiction under Section 3A of the Civil Procedure Act to act upon the independent findings of the Deputy Registrar's report. To safeguard the subject matter from further environmental and physical degradation, the site must remain completely sealed under law enforcement supervision until the primary dispute is resolved. 5. Thus, considering the totality of the evidence, the submissions of Counsel, the Site Visit Report, the physical findings on the ground, and the applicable law, this Court makes the following Orders: 6. ***The 2nd Respondent’s Application dated 12/02/2026 is allowed only to the extent that the Main Petition dated 26/08/2024 is hereby ordered to be fast-tracked for an expedited full hearing. To the extent to which the Application dated 12/02/2026 by the 2nd Respondent seeks to set aside the Ruling of 4/11/2025 and the contempt finding therein it is dismissed; the 2nd Respondent, the Principal Secretary, State Department for Housing, is found to be in contempt of Court for willful disobedience of the Court’s Order issued. However, exercising this Court’s judicial discretion, the requirement for the Principal Secretary to personally appear in Court to show cause why they should not be committed to civil jail is hereby dispensed with. The Principal Secretary is strongly cautioned that any future non-compliance, or similar conduct will attract the severest penalties as provided by law.*** 7. ***The Application dated 26/03/2026 by the 1st and 2nd Petitioners is hereby allowed; the Court hereby issues a further mandatory injunction restraining the 2nd Respondent, its agents, servants, contractors, sub-contractors, and all persons claiming through or under them from carrying out any construction activity whatsoever on Thika Municipality Block 11/343 pending the hearing and determination of the Petition herein.*** 8. ***The Officer Commanding Station, Thika Police Station, is hereby directed and empowered to enforce the stop-order on the suit property, to ensure no construction activities take place thereon, and to arrest and arraign before this Court any person found trespassing on or undertaking any construction works on the suit property in violation of this Order.*** 1. ***The Inspector General of Police is hereby put on notice of these Orders and directed to facilitate the OCS Thika in their execution.*** 2. ***Costs of both Applications shall be borne by the 2nd Respondent and shall be in the cause.*** 3. Orders Accordingly. **DATED, SIGNED AND DELIVERED AT THIKA VIRTUALLY THROUGH MICROSOFT TEAMS ON THIS 15TH DAY OF JULY, 2026.** **…………………….** **MOGENI J** **JUDGE** **Ruling read in virtual Court in the presence of:** Mr. Kinyanjui for the Petitioners/Applicants Mr. Wachira for the 1st Respondent Mr. Motari for the 2nd Respondent Ms. Kemunto for the Interested Party **Mr. Melita - Court Assistant.** **…………………….** **MOGENI J** **JUDGE**