https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12082

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAROK** **CONSTITUTIONAL PETITION NO. E002 OF 2024** ***(CORAM: HON. CHARLES M. KARIUKI – J)*** **IN THE MATTER OF: ARTICLE 22 &23 OF THE CONSTITUTION OF KENYA** **IN THE MATTER OF: ARTICLES 1(1), 2(2), 3(1), 10, 33, 35, and 232(1) OF THE CONSTITUTION OF THE REPUBLIC OF KENYA AND ALL OTHER ENABLING POWERS AND PROVISIONS OF THE LAW** **IN THE MATTER OF: THE CONSTITUTION OF THE REPUBLIC OF KENYA** **(SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS) HIGH COURT PRACTICE AND PROCEDURE RULES 2013** **BETWEEN** **KIPSIELE ARAP TOWETT (alias SEIYO)….…...……………...………..PETITIONER** **VERSUS** **THE CABINET SECRETARY** **FOR THE MINISTRY OF INTERIOR AND** **NATIONAL ADMINISTRATION……..…….………………...…………1ST RESPONDENT** **THE HON. ATTORNEY GENERAL……………………..……………..2ND RESPONDENT** **JUDGMENT** 1. **INTRODUCTION** 2. This Petition raises an important constitutional question regarding the extent to which the National Government, in exercising its statutory mandate to establish administrative units under section 14 of the National Government Co-ordination Act, No. 1 of 2013, is bound by the constitutional imperatives of public participation, transparency, accountability and fair administrative action. The Petitioner does not contest the establishment of Narok Amalo Sub-County. Rather, he challenges the decision of the 1st Respondent to designate Sogoo as the headquarters of the newly established sub-county on the ground that the decision was reached without meaningful, effective and inclusive public participation as required by Articles 10 and 232 of the Constitution. 3. Despite being served with the Petition, the Supporting Affidavit and written submissions, the Respondents neither filed a response nor tendered any evidence or submissions to rebut the Petitioner's factual and legal assertions. 4. The Court is therefore called upon to determine whether the impugned decision complied with the Constitution and, if not, the appropriate constitutional remedies. 5. **PLEADINGS** 6. **The Petition** 7. The Petition dated 6th March 2024 was instituted by Kipsiele Arap Towett (alias Seiyo) on behalf of the residents of Narok County, particularly Narok Amalo Sub-County, against the Cabinet Secretary for the Ministry of Interior and National Administration and the Attorney General. The Petitioner challenges the decision contained in Gazette Notice No. 1766 of 14th February 2024, which established Narok Amalo Sub-County and designated Sogoo as its headquarters. While supporting the creation of the new sub-county, the Petitioner contends that the designation of Sogoo as the headquarters was undertaken without meaningful, effective and inclusive public participation, contrary to the Constitution. 8. The Petition asserts that the Respondents violated various constitutional provisions, including Articles 10, 33, 35, 47, 174, 184 and 232, by failing to adequately involve residents in determining the location of the sub-county headquarters. It alleges that the only meeting convened by the Ministry involved selected individuals, was held outside the affected sub-county, and was not preceded by adequate public notice or dissemination of information through appropriate media. The Petitioner further avers that community resolutions and public participation exercises conducted by local stakeholders overwhelmingly identified Ilmotiook Trading Centre as the most suitable headquarters due to its central location, existing administrative infrastructure, public amenities, accessibility, population, and historical significance. Despite these views, the 1st Respondent allegedly disregarded the outcome of public participation and proceeded to gazette Sogoo as the headquarters. 9. Consequently, the Petitioner seeks declarations that the designation of Sogoo violated the constitutional principles of public participation and good governance and is therefore unconstitutional, null and void. The Petition further seeks an order of certiorari to quash the decision designating Sogoo as the headquarters of Narok Amalo Sub-County, an order of mandamus compelling the 1st Respondent to conduct a meaningful and constitutionally compliant public participation process on the location of the headquarters, together with costs of the Petition and any other appropriate relief. 10. **Supporting Affidavit** 11. The Supporting Affidavit sworn on 6th March 2024 by Kipsiele Arap Towett reiterates that he is the Petitioner and is duly conversant with the facts giving rise to the Petition. He deposes that the 1st Respondent, through Gazette Notice No. 1766 of 14th February 2024, established Narok Amalo Sub-County and designated Sogoo as its headquarters. While affirming that the residents support the creation of the sub-county, he contends that they oppose designating Sogoo as the headquarters because the decision was reached without meaningful, effective, and inclusive public participation. 12. The deponent avers that the Respondent neither conducted adequate public participation nor issued public notices through newspapers, local radio stations, social media or other appropriate channels to notify residents of the intended decision. He further states that the only meeting convened on 17th January 2023 at Park Villa Hotel in Narok involved selected individuals from only a few areas, was held outside the newly created sub-county, and excluded the wider population likely to be affected by the decision. 13. The affidavit further states that the Maasai Council of Elders and the Kipsigis Myoot Council of Elders had agreed to the establishment of the new sub-county on condition that public participation would determine the location of its headquarters. It is deposed that the Ilmotiook Voice of Reason Forum subsequently resolved that Ilmotiook Trading Centre was the most suitable headquarters owing to its central location, existing administrative offices, public institutions, adequate infrastructure, accessibility, population, and historical significance as a centre serving both the Maasai and Kipsigis communities. The deponent also avers that Ilmotiook is surrounded by more populous locations than Sogoo. 14. The deponent further states that on 22nd January 2024, more than 3,000 residents from Ilmotiook, Mara, Sagamian, Sogoo and Melelo wards participated in a public forum and unanimously resolved that Ilmotiook Trading Centre should be the headquarters of Narok Amalo Sub-County. He contends that the views expressed during that forum reaffirmed the earlier community resolutions, but the 1st Respondent disregarded them and proceeded to designate Sogoo as the headquarters without conducting constitutionally compliant public participation. 15. Finally, the deponent maintains that although the 1st Respondent has the statutory mandate to establish sub-counties, the determination of the headquarters ought to reflect the views of the affected residents. He asserts that the impugned decision violates constitutional principles, threatens the supremacy of the Constitution, and necessitates the intervention of the Court. He therefore avers that the Petition and the accompanying application have been brought in good faith to safeguard the Constitution, uphold public participation and the rule of law, preserve the subject matter of the Petition, and secure the ends of justice. 16. **SUBMISSIONS.** 17. **The Petitioner’s Submissions** 18. The Petitioner’s written submissions support the Petition dated 6th March 2024 and urge the Court to declare that the designation of Sogoo as the headquarters of Narok Amalo Sub-County was unconstitutional for want of meaningful, effective and qualitative public participation. The Petitioner seeks declaratory reliefs, an order of certiorari to quash the impugned designation, an order of mandamus compelling fresh public participation on the location of the headquarters, and costs. 19. In the submissions, the Petitioner recounts that Gazette Notice No. 1766 of 14th February 2024 established Narok Amalo Sub-County and designated Sogoo as its headquarters. While the Petitioner does not oppose the creation of the sub-county, he challenges the choice of Sogoo on the basis that residents were not adequately consulted. The Petitioner submits that the alleged meeting held on 17th January 2023 at Park Villa Hotel in Narok was attended by selected individuals from limited areas, was held outside the newly created sub-county, and excluded the wider affected population. It is further argued that no public notice was issued through newspapers, local radio stations, social media or other accessible channels to inform residents of the intended public participation. 20. The Petitioner also relies on community processes which, according to the submissions, supported Ilmotiok Trading Centre as the appropriate headquarters. The Maasai Council of Elders and the Kipsigis Myoot Council of Elders had agreed to the creation of the sub-county subject to public participation on the headquarters. The Ilmotiok Voice of Reason Forum resolved that Ilmotiook Trading Centre was suitable because of its central location, existing administrative infrastructure, public institutions, utilities, accessibility, population and historical significance. It is further submitted that on 22nd January 2024 more than 3,000 residents from Ilmotiook Ward and neighbouring areas participated in a public forum and unanimously resolved that Ilmotiook Trading Centre should be the headquarters. 21. The sole issue framed for determination is whether the 1st Respondent conducted constitutionally compliant public participation in designating Sogoo as the headquarters of Narok Amalo Sub-County. The Petitioner relies on Articles 10(2)(a) and 232(1)(d) and (f) of the Constitution, which entrench public participation, involvement of the people in policy-making, transparency and accountability. The submissions also refer to section 14(1) of the National Government Co-ordination Act, 2013, acknowledging that the Cabinet Secretary has power to establish service delivery co-ordination units, but contending that the exercise of that power must conform to constitutional requirements. 22. In support of the constitutional argument, the Petitioner relies on several authorities. First, the submissions cite **Mugo & 14 others v Matiang’i & another; Independent Electoral and Boundaries Commission & 19 others (Interested Party) [2022] eKLR,** in which the Court emphasised that public participation is a central component of administrative, regulatory, and statutory decisions affecting the public. 23. Second, reliance is placed on **Sang & 7 others v Cabinet Secretary for Interior & Co-ordination of National Security & another [2024] eKLR,** where the Court quashed the designation of a sub-county headquarters after finding that the Cabinet Secretary had failed to demonstrate adequate and inclusive public participation. The submissions highlight the Court’s holding that the burden lay on the respondents to prove that public participation had been undertaken. 24. Third, the Petitioner cites the Court of Appeal decision in **Kiambu County Government & 3 others v Robert N. Gakuru & others [2017] eKLR,** for the proposition that public participation must include dissemination of information, invitation to participate and consultation. 25. Applying those authorities, the Petitioner submits that the Respondent failed to meet the constitutional threshold because the alleged consultation was geographically misplaced, limited to selected individuals, and unsupported by any evidence of proper notice or facilitation of participation by the wider affected residents. The Petitioner argues that the Respondent also failed to demonstrate that the views expressed by residents were considered in good faith. In contrast, the Petitioner contends that the community forum of 22nd January 2024 represented genuine public participation and produced a unanimous resolution in favour of Ilmotiook Trading Centre. 26. Accordingly, the Petitioner submits that the designation of Sogoo as the headquarters of Narok Amalo Sub-County violated Articles 10 and 232 of the Constitution, is null and void, and should be quashed. The Court is therefore urged to allow the Petition and grant the declaratory orders, certiorari, mandamus and costs sought. 27. **ISSUES FOR DETERMINATION** 28. Having considered the pleadings, affidavit evidence and the Petitioner's written submissions, the Court is of the considered view that the following issues arise for determination: 29. **Whether the designation of Sogoo as the headquarters of Narok Amalo Sub-County was undertaken in compliance with the constitutional requirement of public participation.** 30. **Whether the Petitioner has established violations of Articles 10, 35, 47 and 232 of the Constitution.** 31. **Whether the Petitioner is entitled to the reliefs sought** 32. **ANALYSIS AND DETERMINATION** 33. **Whether the designation of Sogoo as the headquarters of Narok Amalo Sub-County complied with the constitutional requirement of public participation** 34. There is no dispute that the Cabinet Secretary is empowered under section 14(1) of the National Government Co-ordination Act, No. 1 of 2013 to establish national government service delivery coordination units by Gazette Notice with the approval of the President. However, every statutory power must be exercised within the confines of the Constitution. Article 2(1) declares the Constitution to be the supreme law binding all State organs and public officers, while Article 10 makes public participation one of the national values and principles of governance applicable whenever public policy decisions are made. 35. Article 232(1)(d) and (f) further require the public service to ensure the involvement of the people in policy-making and to maintain transparency and accountability. Equally, Article 47 guarantees every person the right to administrative action that is lawful, reasonable and procedurally fair. These constitutional provisions are not ornamental. They impose mandatory procedural obligations upon public authorities whenever decisions affect the public. 36. The jurisprudence of our superior courts has consistently emphasized that public participation is an indispensable constitutional requirement rather than a mere procedural formality. In **Doctors for Life International v Speaker of the National Assembly & Others (CCT 12/05) [2006] ZACC 11; 2006 (6) SA 416 (CC),** the Constitutional Court of South Africa, whose reasoning has frequently been adopted by Kenyan courts, held that meaningful public participation enhances the legitimacy of governmental decision-making and strengthens constitutional democracy. 37. In Kenya, the Court of Appeal in **Kiambu County Government & 3 others v Robert N. Gakuru & others [2017] eKLR** stated that public participation must encompass adequate dissemination of information, invitation to participate and genuine consultation. The Court observed that public participation cannot be reduced to a cosmetic or symbolic exercise but must afford affected persons a reasonable opportunity to influence the decision-making process. 38. Similarly, in **Mugo & 14 others v Matiang'i & another; Independent Electoral and Boundaries Commission & 19 others (Interested Parties) [2022] eKLR**, the High Court reiterated that public participation is now the centrepiece of administrative and policy decisions affecting citizens and must precede the making of such decisions. 39. Of even greater relevance is **Sang & 7 others v Cabinet Secretary for Interior & Co-ordination of National Security & another [2024] eKLR,** where the Court considered circumstances substantially similar to the present dispute involving the designation of sub-county headquarters. The Court held that once a petitioner demonstrates an apparent lack of public participation, the evidential burden shifts to the respondents to demonstrate that adequate, inclusive and meaningful public participation was undertaken. In that case, the Court quashed the impugned Gazette Notice after finding that the respondents had failed to discharge that burden. 40. In the present Petition, the Petitioner has placed before the Court sworn evidence that the only meeting relied upon by the Respondents was held on 17th January 2023 at Park Villa Hotel in Narok; that it involved selected individuals from only portions of the proposed sub-county; that no public notice was issued through newspapers, local radio stations or other media; and that the wider residents of Narok Amalo Sub-County were neither notified nor afforded an opportunity to participate. The Petitioner has further exhibited evidence of subsequent community consultations involving more than 3,000 residents who resolved that Ilmotiook Trading Centre ought to be the headquarters. 41. Significantly, the Respondents have neither filed a replying affidavit nor any documentary evidence to rebut these factual assertions. Although the Court does not grant constitutional relief merely because a petition is undefended, the uncontroverted evidence placed before the Court remains sufficient proof on a balance of probabilities where it establishes constitutional violations. The absence of a defence does not automatically entitle a party to judgment, but unrebutted evidence may properly be accepted where it establishes the claim. 42. In the absence of any explanation demonstrating the nature, scope or adequacy of the alleged public participation, this Court is unable to conclude that the constitutional threshold established under Articles 10 and 232 was met. Public participation requires more than selective consultation of a few individuals. It requires openness, adequate notice, dissemination of relevant information and genuine consideration of the views presented. 43. Accordingly, I find that the designation of Sogoo as the headquarters of Narok Amalo Sub-County was undertaken in violation of Articles 10 and 232 of the Constitution and was therefore procedurally unconstitutional. 44. **Whether the Petitioner has established violations of Articles 35, 47 and 232 of the Constitution** 45. The Petition also invokes Articles 35 and 47 of the Constitution. Article 35 guarantees citizens access to information held by the State, while Article 47 secures the right to lawful, reasonable and procedurally fair administrative action. 46. The Petitioner's unrebutted evidence demonstrates that the Respondents failed to publicize the intended consultations through newspapers, local radio stations or other accessible communication channels. Consequently, residents were deprived of the timely information necessary to participate effectively in a decision directly affecting their community. Such omission undermined both the constitutional right to information and the constitutional value of transparency in public administration. 47. Further, an administrative decision affecting an entire sub-county cannot be regarded as procedurally fair where those most directly affected are denied a meaningful opportunity to participate. In **Judicial Service Commission v Mbalu Mutava & another [2015] eKLR**, the Court of Appeal held that Article 47 constitutionalized the common law principles of natural justice and requires fairness in every administrative decision. 48. I therefore find that the manner in which the impugned decision was reached violated Articles 35, 47 and 232 of the Constitution. 49. **Whether the Petitioner is entitled to the reliefs sought** 50. Article 23(3) of the Constitution empowers this Court to grant appropriate relief, including declarations, judicial review orders and any other remedy necessary to vindicate constitutional rights. Where an administrative decision has been reached in violation of constitutional procedures, the Court is obligated to intervene. 51. Having found that the impugned Gazette Notice was issued without meaningful public participation, the appropriate remedies are declarations of constitutional invalidity, an order of certiorari quashing the decision designating Sogoo as the headquarters, and an order of mandamus directing the 1st Respondent to undertake a constitutionally compliant public participation process before determining the headquarters of Narok Amalo Sub-County. 52. **DISPOSITION** 53. Consequently, I find that the Petition dated 6th March 2024 has merit and is hereby allowed. 54. Accordingly, I make the following orders: 55. **A declaration is hereby issued that the 1st Respondent violated Articles 10 and 232 of the Constitution by designating Sogoo as the headquarters of Narok Amalo Sub-County without conducting meaningful, effective and constitutionally compliant public participation.** 56. **A declaration is hereby issued that the designation of Sogoo as the headquarters of Narok Amalo Sub-County through Gazette Notice No. 1766 of 14th February 2024 is unconstitutional, null and void.** 57. **An order of Certiorari is hereby issued removing into this Court and quashing the decision of the 1st Respondent designating Sogoo as the headquarters of Narok Amalo Sub-County contained in Gazette Notice No. 1766 of 14th February 2024.** 58. **An order of Mandamus is hereby issued directing the 1st Respondent to undertake meaningful, effective and constitutionally compliant public participation before designating the headquarters of Narok Amalo Sub-County.** 59. **The Petitioner shall have the costs of the Petition.** 60. Orders accordingly. **DATED, SIGNED, AND DELIVERED AT NAROK, THIS 31ST TH DAY OF JULY, 2026.** **CHARLES KARIUKI** **JUDGE**