Omar v State Department of Housing & Urban Development & another (Petition E004 of 2025) [2025] KEHC 11500 (KLR) (31 July 2025) (Ruling)
Neutral citation:
[2025] KEHC 11500 (KLR)
Republic of Kenya
Petition E004 of 2025
JN Onyiego, J
July 31, 2025
Between
Abdisalan Adan Omar
Petitioner
and
State Department of Housing & Urban Development
1st Respondent
The Attorney General
2nd Respondent
Ruling
1.The applicant/petitioner moved this court via a petition dated 18.02. 2025 seeking orders that:a.A declaration be issued under articles 10(1)(c), (2)(b)(1) and (2),27,47 & 232(1)(d), that the respondents are under duty to let the project be implemented in Buna as earlier advertised and intended.b.A declaration be issued that the respondents have failed to have regard to equality, equity and fairness to the people from Buna.c.A declaration be issued that the decision to change location of the project from Buna to Korondille is null and void ab initio and ought to be reversed so as to pave way for the implementation of the project.d.An order do issue to remove to this court and quash the respondent’s decision to change the location of the project from Buna to Korondille.e.A permanent mandatory order do issue directing the 1st respondent to carry out the project in Buna.f.The cost of this petition be borne jointly and severally by the respondents.g.This court be pleased to grant such further order or orders as it may deem to be just and appropriate.
2.Contemporaneously filed with the petition is a notice of motion of even date which is anchored on the grounds set out on the face of it and further, supported by the affidavit of Abdisalan Adan Omar, the applicant/ petitioner herein sworn on 18.02.2025 in which the applicant sought for prayers listed below:i.Spent.ii.That pending the hearing and determination of this application inter parties, an interim order be and is hereby issued restraining and prohibiting the respondents from changing the location of Tender No. MLPWHUD/SDHUD/AHP/213/2024 – 2025 from Buna ESP market to Kolondille market.iii.That pending the hearing and determination of this application, an interim order be and is hereby issued restraining and prohibiting the respondents from changing the location of Tender No. MLPWHUD/SDHUD/AHP/213/2024 – 2025 from Buna ESP market to Kolondille market.iv.That pending the hearing and determination of the petition, an order be and is hereby issued restraining and prohibiting the respondents from changing the location of Tender No. MLPWHUD/SDHUD/AHP/213/2024 – 2025 from Buna ESP market to Kolondille market.v.That this Honourable Court do provide for costs of this application.
3.What falls due for determination is the notice of motion dated 18.02.2025.
4.It was averred that on 23.01.2024, the State Department under the Ministry of Lands, Public Works, Housing and Urban Development advertised a tender for the proposed construction of Buna ESP market in Wajir County. That the tenders were to be delivered on or before Tuesday, 06.02.2024 at 9.00 a.m. via Tender No. MLPWHUD/SDHUD/UDD/318/2023 – 2024. That a few days to the tender opening date, the same was changed to 12.02.2024 and an addendum to that effect was published.
5.He averred that 11 companies tendered their bid for the work and the tender opening was done on 12.02.2024 but the 1st respondent did not communicate the successful bidder. A year later, on 25.01.2025, the 1st respondent advertised the same project afresh to wit the proposed construction of Buna ESP market in Wajir North, Tender No. MLPWHUD/SDHUD/AHP/213/2024 – 2025. That 3 days to the opening of the tenders, the 1st respondent changed the date of tender opening from 12.02.2025 to 19.02.2025. Besides, they also changed the market location from Buna ESP market to Kolondile ESP market and thus issued an addendum to that effect.
6.That the people of Buna through their duly elected member of County Assembly, Hon. Adannur Ibrahim protested the change of market location from Buna by a letter dated 17.02.2025 and the same has since elicited no response. It was deponed that the people from Buna area feel frustrated and discriminated against as no justifiable reason was issued to them on the change of location of the said market construction.
7.As a response, the respondents filed a preliminary objection dated 27.02.2025 which the court determined and dismissed via a ruling delivered on 30.04.2025.
8.Similarly, the respondent through Mr. Charles M. Hinga, the principal secretary in charge of the State Department for Housing and Urban Development at the Ministry of Lands swore a replying affidavit on 12.03.2025 deposing that it was the member of parliament for Wajir North Constituency who wrote to the 1st respondent requesting that the proposed Buna Economic Stimulus Project Market hereinafter, ESP market be moved to Korondille Sub County. That the rationale behind the member of parliament’s request was that Buna Town has an existing market that is under-utilized and that the town is also set to benefit from the Affordable Housing Programme (A.H.P) of 400 units.
9.It was averred that Korondille and Wajir North sub counties had no project at all and sought the intervention of the regional design team to issue an addendum to relocate the proposed ESP from Buna to Korondille as the adjustment was crucial to ensuring and aligning projects with the current regional needs. It was further averred that the State Department in considering the request noted that there was need to balance developments in Wajir North Constituency as expressed by the local leadership. It was stated that Buna and Korondille are two of the seven wards that form Wajir North Constituency and as such, developments of the ESP market in Korondille is still for the betterment of the lives of the people of Wajir North Constituency.
10.Additionally, that the suit herein as filed ought not be entertained by this court for the reason that this Honourable Court lacks requisite jurisdiction to handle the matter. That the court under article 162(2)(b) is the proper court where the suit ought to be filed. Further, that the petitioner did not demonstrate any allegations of corruption, impunity and arbitrariness of the decision to transfer the market from Buna to Korondille.
11.The application was canvassed by way of written submissions.
12.The applicant filed submissions dated 30.05.2025 urging that the rights and fundamental freedoms of the people of Buna have been infringed and violated by the blatant breach of express provisions of articles 10(1)(c), (2)(b)(1) & (2),27,47 and 232(1)(d) of the constitution in purporting to change the market location from Buna to Kolondile. That at least, the people of Buna ought to have been engaged by the 1st respondent before changing the location of the market. The applicant relied on the case of Suchan Investment Limited vs Ministry of National Heritage & Culture & 3 Others [2016] eKLR, where the court highlighted that articles 47(1) & (2) of the constitutionprovides that if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
13.It was urged that article 232 of the constitutionintegrates the involvement of people in the process of policy making as a key value and principle of public service. That the people of Buna were not involved in any way in the decision to change the location of construction of the market place from Buna to Kolondile. To that end, the petitioner urged that noting that the 1st respondent unilaterally made a decision to change the location of construction of a market place, the same ought to be rendered null.
14.The respondent filed submissions dated 19.06.2025 contending that the allegation of want of public participation is without basis and is premature on account of open tenders in light of section 91 of the Public Procurement and Asset Disposal Act as clarified by the Court of Appeal in the case of Independent Electoral and Boundaries 2 Commission vs National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR. That the issue in change of the location of the said proposed Buna ESP market is an issue that the respondents considered as being a fair action to bring equity to other persons other than the Buna residents who also have the affordable housing project being carried out in their area. This court was thus urged to dismiss the application herein for want of merit.
15.I have considered the application herein, the reply thereof and submissions by both parties. The only issue for determination is whether the applicants have met the threshold for grant of conservatory orders.
16.A conservatory order is in its very nature, a temporary relief issued by a court of law to stop a certain act from happening or continuing to happen pending issuance of a substantive order or declaration. In the case of Invesco Assurance Co. Ltd vs MW (minor suing thro’next friend and mother (HW) (2016) eKLR, the court held as follows;[Also see the Supreme Court in the case of Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 others].
17.The applicant thus ought to have demonstrated that he has an arguable prima facie case with a likelihood of success and that in the absence of the conservatory order, he is likely to suffer prejudice. See the case of Wilson Kaberia Nkunja vs The Magistrate and Judges Vetting Board and others Nairobi High Court Constitutional Petition No. 154 of 2016.
18.The second principle is whether the grant or a denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights. Thirdly, is the question whether, if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. Lastly, that the Court should consider the public interest and relevant material facts in exercising its discretion whether, to grant or deny a conservatory order. [See County Assembly of Machakos vs Governor, Machakos County & 4 others [2018] eKLR.
19.It is trite that when a court is called upon to determine whether a prima facie case has been established, it should not delve into a detailed analysis of the facts and law but should restrain itself to the fact whether an applicant has put forward a case that is arguable hence not frivolous. In Board of Management of Uhuru Secondary School vs City County Director of Education & 2 others Petition No. 359 of 2015, the Court stated that:
20.The applicants are seeking a conservatory order restraining the 1st respondent from changing the location of construction of the market place from Buna to Kolondile. They urged that the same was carried out unilaterally by the 1st respondent without involving the Buna people. The same was not rebutted and to the contrary, the 1st respondent urged that the move was considered as being fair so as to bring equity to other persons other than the Buna residents who also have the affordable housing project being carried out in their area. In my view, the applicant thus established a prima facie case which is arguable.
21.As regards the question of public interest, one would have to examine the importance of having a market constructed in a particular area. Among the benefits realizable is job creation distribution and increased social-economic resources. It was urged that the people of Buna had already taken proactive steps towards the realization of the said market hence in my view, the same was a matter of public interest. In the case of Kenya Ant-Corruption Commission vs Deepak Chamanlal kamani and 4 others (2014) e KLR the court held that;
22.The applicant also urged that the 1st respondent had breached the provisions of articles 10(1)(c), (2)(b)(1) & (2),27,47 and 232(1)(d) in respect to public participation by purporting to change the market location from Buna to Kolondile. To that end, it was argued that it was necessary that this court uphold such rights by allowing the prayers herein. [ See Law Society of Kenya v Officer of the Attorney General & another; Judicial Service Commission (Interested Party) [2020] eKLR].
23.Amongst the reliefs sought is a declaration that there was lack of public participation in the creation and the relocation of the market from Buna to Kolondile. This is an important aspect which cannot be ignored.
24.In the circumstances, it is my finding that the petition herein is likely to be rendered nugatory if the conservatory order is not granted. In the same breadth, no prejudice is likely to be suffered by the respondents if the application is not allowed. As such, it is my view that the threshold for grant of a conservatory order sought pending the hearing and determination of the petition has been met by the applicant.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 31ST DAY OF JULY 2025……………………J. N. ONYIEGOJUDGE