Court nullifies Affordable Housing project in Bungoma, orders restoration of public land

The Environment and Land Court in Bungoma ruled that the proposed Kanduyi Airstrip Smart City Affordable Housing Project was unconstitutional and unlawful, citing failures to comply with legal requirements governing public land, environmental protection and public participation.

In the judgment delivered virtually on October 8, 2026, Justice K. Bor directed the respondents to restore the land to its original state within 45 days, with all restoration expenses to be met by the parties held responsible.

The court’s decision deals a significant blow to the multibillion-shilling project, which was expected to deliver 2,034 housing units and associated social amenities on approximately 36.95 acres of land identified as Bungoma Township/345.

The construction contract, valued at about Ksh.5.02 billion inclusive of VAT, had been awarded to Shyam General Merchants Limited.

The case arose from three consolidated constitutional petitions, including one filed by Barasa Nyukuri and Francis Simiyu Tome, challenging the decision to convert land historically reserved for aviation into a residential development.

In its ruling, the court determined that Bungoma Township/345 was public land reserved for aviation purposes and that converting it to another use without following the legally prescribed change-of-user procedures was unlawful.

The respondents were found to have failed to demonstrate that they had complied with the applicable legal framework for the allocation and conversion of public land.

The court also faulted the project for proceeding without adequate public participation, sufficient stakeholder engagement and compliance with environmental and physical planning requirements.

Justice Bor held that the actions violated Articles 10, 42, 62 and 69 of the Constitution, touching on national values and governance, environmental rights, public land and environmental protection.

The court consequently declared the project’s tender process unconstitutional and void.

Beyond nullifying the project, the court issued a permanent injunction barring the respondents from undertaking activities inconsistent with the land’s designated use.

The restrictions cover development, rezoning, alienation, leasing, transfer and other dealings that would interfere with the property contrary to its lawful status.

The respondents were also directed to undertake an environmental planning and land-use audit within 45 days.

The National Land Commission was tasked with securing, protecting and managing the land in accordance with the Constitution and applicable legislation.

The restoration order places the responsibility for returning the property to its pre-project condition on the respondents, jointly and severally.

A central issue in the case was whether the public had been adequately consulted before the housing project was approved and its implementation set in motion.

The court noted that the construction contract had already been awarded before a public participation meeting held on January 14, 2026.

It rejected reliance on consultation conducted after key decisions had effectively been made, emphasising that public participation must be meaningful and take place early enough to influence government decisions.

The judge further stressed the need to consider environmental sustainability and ensure that women, children, young people and persons with disabilities are meaningfully involved in decisions concerning public resources.

The judgment also ordered the Kenya Airports Authority and the National Land Commission to establish within 14 days whether six additional parcels - Bungoma Municipality/610, 611, 612, 852, 795 and 799 - formed part of the land reserved for Kanduyi Airstrip.

If the investigations confirm that the parcels are part of the airstrip, the court ruled that the declarations and remedies issued in the consolidated petitions would extend to them, with the necessary modifications.

The directive could widen the scope of the dispute beyond the main parcel targeted for the housing project.

The petitioners were awarded the costs of the proceedings, payable by the respondents.

The ruling reinforces the principle that government development initiatives must comply with constitutional safeguards, even where they are intended to address pressing public needs such as affordable housing.

It also underscores the role of public-interest litigation in holding state institutions accountable over decisions involving public assets and environmental concerns.

The decision is likely to attract wider attention over the management of public land in Kenya and the legal procedures government agencies must follow before implementing large scale development projects.

For the Kanduyi project, the immediate consequences are clear: the court has nullified the tender process, prohibited development inconsistent with the land’s lawful designation and ordered restoration of the disputed property within the stipulated period.