Court blocks national government bid to seize Kiambu markets

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The High Court has delivered a far-reaching ruling reinforcing the autonomy of county governments, holding that the national government cannot unilaterally take over functions constitutionally assigned to counties under the devolved system of governance.

In a decision likely to shape future relations between the two levels of government across the country, the Environment and Land Court in Thika stopped attempts by national government agencies to take control of several markets in Kiambu County.

Justice Jacqueline Mogeni said the dispute between the Kiambu County Government and the National Government over the construction of Ngoliba, Karuri, Gakoe and Maguguni markets raises fundamental constitutional questions regarding the protection of devolution.

At the same time, the judge ordered Lands Cabinet Secretary Alice Wahome, Principal Secretary Charles Hinga, Inspector General of Police Douglas Kanja and local police commanders to appear before her personally on July 8 to explain why they should not be committed to civil jail for contempt of court.

Justice Mogeni further directed that the cost of the application be borne personally by the respondents in the suit.

The court also ordered the immediate withdrawal of Enchanted Mombasa Limited, the contractor at the centre of the dispute, together with its agents and workers, from the Ngoliba Market site.

“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,” Justice Mogeni stated.

The judge added, “Obedience is a legal command and not a matter of choice. No public officer or institution is at liberty to decide which court orders to obey and which ones to ignore.”

The ruling arose from a dispute in which the Kiambu County Government accused the National Government of unlawfully attempting to seize control of projects that fall squarely within county functions.

The heavily armed police sourced from various sub-counties in Kiambu, General Service Unit offices backed by goons linked to a local elected Member of Parliament, were deployed to the site, where county officials were also attacked and injured.

According to court documents, the county had awarded a tender for the construction of Ngoliba Market, but the cabinet secretary and the principal secretary sent police to "unlawfully invade and seize" the market, where they vandalised and caused a loss of public assets worth Sh19 million.

County Chief Officer Solomon Mwaura, who was in charge of trade and markets, in an affidavit, told the court that the national government, through the respondents, staged an "unconstitutional incursion" into the devolved county functions.

Mwaura told the court that initially, there was a cooperation between the national government and Kiambu County over market construction, but the relationship soured after the county declined to offer the Ngoliba Market, Gakoe, Karuri, and Maguguni sites since procurement had already happened.

"Mwaura chronicles what he terms as shocking and flagrant abuse of power beginning on 18/03/2025 when the respondents orchestrated a police-led invasion of Ngoliba Market....He posits that the respondents' actions have led to a double procurement crisis while the county had already awarded tenders to legitimate contractors," reads the ruling.

Justice Mogeni found that the county had established a strong case showing that the management and development of markets is a devolved function and that any intervention by the National Government must respect the constitutional framework governing relations between the two levels of government.

The court noted that the Constitution expressly places trade development and regulation, including markets, under county governments and warned against actions that would undermine the authority of devolved units.

At the heart of the dispute was the invasion of Ngoliba Market in Thika, where the ministry deployed a contractor to construct the market despite the county government already undertaking the same project.

In court, the county alleged that national government officials, aided by police officers and a contractor, moved into the markets and interfered with county operations, locking out traders and county staff while attempting to commence construction works.

In the ruling delivered yesterday, the court held that the National Government had failed to demonstrate any constitutional basis for bypassing the county administration and assuming control of the markets.

Justice Mogeni observed that previous engagements between the two levels of government had acknowledged the county's role in identifying and managing market projects, making the sudden shift to unilateral action difficult to justify.

“Evidence presented showed a breakdown in consultation and cooperation, which are key principles underpinning Kenya's devolved system,” the judge noted.

The judge further found that although intergovernmental disputes are generally expected to be resolved through consultation and alternative dispute resolution mechanisms, courts cannot remain passive where there is an ongoing threat to constitutional rights and the integrity of devolved government.

“Requiring a county government to negotiate while public assets are allegedly being taken over would defeat the purpose of constitutional protection,” the ruling read in part.

The court emphasised that devolution was deliberately entrenched in the Constitution to prevent excessive concentration of power at the centre and that development projects cannot be used as a justification for disregarding constitutional boundaries.

The ruling is expected to resonate beyond Kiambu, as several counties have in recent years complained about national government agencies initiating projects in constitutionally devolved sectors without adequate consultation.

The court said preserving the constitutional order was more important than the financial implications cited by the respondents, including claims that contractors had already mobilised to project sites.

Justice Mogeni held that allowing government agencies to proceed merely because works had already commenced would create a dangerous precedent “where unlawful actions are rewarded simply because they are executed quickly.”

“The Constitution does not cease to operate merely because a project is described as development. Public benefit must be pursued within constitutional limits and not outside them,” the judge observed.

The court proceeded to issue conservatory orders protecting the four markets from interference pending the hearing and determination of the main petition.

Justice Mogeni barred the national government from taking over the Ngoliba, Karuri, Gakoe, and Maguguni markets or any other market falling under Kiambu County’s jurisdiction.