When Kajiado County Government awarded a contractor a Sh3.9 million contract to grade and gravel the Acacia Feeder Road in February 2024, Kitengela residents expected smoother journeys to Namanga Road and the town centre.
However, the contractor abandoned the project four months later after completing barely one kilometre of the promised four, leaving the estate’s only access road covered with loose stone chippings, patches of exposed cotton soil and poor-quality murram that turned into dust during dry weather and mud whenever it rained.
The residents refused to accept what many Kenyans have become accustomed to-poor workmanship, substandard roads, abandoned public projects and disappearing public funds.
Instead of complaining on social media or waiting for the next election cycle, they organised themselves through residents’ associations. They documented the defects, photographed the damaged road, commissioned an engineering assessment and sued the county, its contractor, the local MCA and other officials over substandard works and an undelivered project.
Their request for the procurement records from the county government was unsuccessful after the officials declined to release the information.
Two years later, the High Court has handed them a landmark victory, finding that ordinary citizens can invoke the Constitution to challenge how public money is spent on local development projects.
In a judgment dated July 20, the court rewarded their persistence with a precedent-setting judgment that recognised the residents’ petition as an effort to enforce “constitutional accountability, transparency and integrity obligations against public officers and a county government.”
Affirming the power of citizens to use the Constitution to demand accountability over public projects, the court also issued far-reaching orders requiring the Director of Criminal Investigations, the Director of Public Prosecutions, the Controller of Budget and the Kajiado County Assembly to examine the judgment and supporting evidence for any action they may consider appropriate.
The case was filed by four officials of the Kitengela Acacia Larger Neighbourhood Association (KALNA) and the Oloika Community Resident Association (OCRA) on behalf of the residents and daily users of the road.
Their petition targeted Simongiko Valley Works Limited, which had won the road contract, the County Government of Kajiado, senior county roads and public works officials, and Oloosirkon/Sholinke MCA.
According to the residents, the contractor reported to the site only in early June 2024 after repeated demands from the community despite receiving the award in February. They told the court that the works fell far below the contract specifications.
The petitioners said the contractor spread a thin layer of poor-quality material presented as murram over a short stretch of the road without proper compaction.
They also complained that loose stone chippings were scattered across the surface before the contractor abandoned the site while claiming the works had been completed.
Their concerns went beyond poor workmanship. They alleged that the project was supervised not by county engineers but by a ward development officer attached to the MCA’s office, who also procured the murram used on the road.
They further alleged that the MCA was the true beneficiary of the contract through the contractor. The MCA did not file a response in court to challenge those allegations. The residents also wanted to know how nearly Sh4 million in public funds had been spent.
They repeatedly wrote to the county government requesting the Bill of Quantities, road designs, tender evaluation documents, award letter and contract agreement. The documents were not supplied despite several requests.
The court found that the county only produced some of the records after the case had already been filed.
“The Bill of Quantities was only provided when it was annexed to the 2nd to 5th respondents’ (county government and Roads Chief Officer) replying affidavit… over a year and a half after the petition was filed and only in the context of these proceedings,” the court said.
The court ruled that supplying the documents after litigation had begun did not erase the earlier violation.
“A constitutional violation is not expunged by belated compliance under the compulsion of litigation.”
The county government maintained that the procurement process complied with the law and that its engineers had inspected the road before issuing a completion certificate confirming the works had been completed.
The court, however, was not persuaded. The court noted that the residents had produced photographs showing punctured tyres, damaged vehicles, schoolchildren walking on loose stones and school buses stranded after rainfall.
They also presented an engineering assessment estimating that the actual works completed were worth about Sh1.2 million compared with the Sh3.97 million contract value.
“A completion certificate does not, in and of itself, constitute conclusive proof of satisfactory execution of works where there is credible evidence to the contrary,” the court ruled.
It found that the county had failed to ensure public money was used to deliver the project to the required standards.
“The failure to ensure that public funds were applied to execute the contracted works to specification, resulting in the road being left in a worse condition than before the works commenced, constitutes an omission that violates the petitioners’ right to a clean and healthy environment,” the court stated.
It also awarded the four petitioners Sh150,000 each, totalling Sh600,000 as damages and Sh300,000 as costs of the case.
In its final orders, the court ordered the county government to organise an independent inspection of the road within 60 days and prepare a plan to remedy any defects identified.
It directed the county to release all procurement records relating to the project free of charge to the residents.