′The High Court in Nairobi has allowed the publication of a notice in a newspaper of nationwide circulation in a constitutional case challenging the manner in which county legislation is published and brought into force.
The case, filed at the Constitutional and Human Rights Division of the Milimani High Court, has 51 respondents, including county governments, the National Council for Law Reporting (Kenya Law), the Kenya Law Reform Commission, the Council of Governors, the Judiciary, the Attorney-General and the Director of Public Prosecutions.
Seven interested parties, including officials associated with the Kiambu County Government and security agencies in the county, have also been named in the proceedings.
Justice Patricia Nyaudi Mande, in directions issued on June 18, 2026, declined to certify the application as urgent but granted the petitioners leave to serve the respondents through substituted service.
The judge directed that the Notice of Motion and the court order be published in a newspaper of wide circulation within seven days.
The respondents have been given 14 days from the date of publication to file their responses to the application.
The petitioners will then have 14 days after being served with the respondents’ responses to file and serve a further affidavit and written submissions. The respondents will subsequently have 14 days to file and serve their submissions, while the petitioners have been granted seven days to file supplementary submissions.
The matter will be mentioned on September 22, 2026, for the court to confirm compliance with the directions and issue further directions.
The petition was filed by James Gachira Nganga, Faith Ruguru Munene, Ahmed Chege Gikera, George Kennedy Kaganya Gitumbui and Kevin Gitau Waithira.
Ms Munene is suing as a member of and in the interest of the Kiambu business community.
The petitioners have raised constitutional questions surrounding Article 199(1) of the Constitution, which provides that county legislation does not take effect unless it is published in the Gazette.
They have also placed before the court the interpretation of the word “Gazette” under Article 260 of the Constitution, which defines it as the Kenya Gazette published by the authority of the national government or a supplement to the Kenya Gazette.
At the centre of the dispute is the petitioners’ contention that county laws published in county Gazette Supplements may not meet the constitutional threshold for legislation to take effect unless those supplements are also properly published as part of the Kenya Gazette.
The petitioners argue that a Kenya Gazette Supplement should be understood as an accompanying document to a volume of the Kenya Gazette and that its legal effect depends on the manner in which it is published.
They have asked the court to determine whether county legislation published in county Gazette Supplements, but allegedly not published in a volume of the Kenya Gazette, satisfies the requirements of Article 199(1) of the Constitution.
The petitioners have cited several pieces of county legislation which they claim raise questions over compliance with the constitutional publication requirement.
Among the laws cited are various Nairobi City County and Mombasa County laws, including appropriation laws, legislation dealing with alcohol licensing, betting and gaming, childcare, community health, cultural heritage, disaster management, dog control, education and health.
The petitioners contend that some of the laws are listed by the National Council for Law Reporting as Acts in force despite what they describe as uncertainty over whether they were published in the Kenya Gazette in the manner required by the Constitution.
They have consequently challenged what they describe as the continued recognition and enforcement of such county laws by public institutions.
The petitioners have invoked Article 165(3)(d) of the Constitution, which gives the High Court jurisdiction to determine whether a law is inconsistent with or contravenes the Constitution and whether anything done under the authority of the Constitution or any law is unconstitutional.
They have also relied on Article 258, which allows a person to institute court proceedings claiming that the Constitution has been contravened or is threatened with contravention.
The case also raises questions concerning the interpretation of Section 3 of the Interpretation and General Provisions Act, which defines “the Gazette” to include the Kenya Gazette published under the authority of the Government of Kenya and any supplement thereto.
The petitioners argue that the wording used in the Constitution and legislation requires a clear distinction between the Kenya Gazette and a Gazette Supplement.
According to their pleadings, the issue has implications for the validity and enforceability of county legislation across the country.
The petitioners have cited a previous Court of Appeal decision, County Government of Kiambu v Kariuki & three others, as part of their argument that the courts should provide clarity on the legal status of county legislation and its publication.
They have further asked the High Court to certify the matter as raising substantial questions of law and refer it to the Chief Justice for the constitution of a bench of three or more judges.
The petitioners say the proposed bench would conclusively determine the interpretation of the expressions “supplement to the Kenya Gazette” and “supplement thereto” as used in the Constitution and other laws.
They argue that the questions raised are of public interest and have implications beyond the parties before the court, given that county legislation affects millions of Kenyans and governs a wide range of services, taxation, licensing, public finance and other devolved functions.
The petitioners have also asked that each party bear its own costs, arguing that the proceedings have been instituted in the public interest.
The case has brought together all 47 county governments as well as national institutions and constitutional offices.
The county governments named in the petition include Nairobi, Mombasa, Kwale, Kilifi, Tana River, Lamu, Taita-Taveta, Garissa, Wajir, Mandera, Marsabit, Isiolo, Meru, Tharaka-Nithi, Embu, Kitui, Machakos, Makueni, Nyandarua, Nyeri, Murang’a, Kiambu, Turkana, West Pokot, Trans Nzoia, Uasin Gishu, Elgeyo-Marakwet, Nandi, Baringo, Laikipia, Nakuru, Narok, Kajiado, Kericho, Bomet, Kakamega, Vihiga, Bungoma, Busia, Siaya, Kisumu, Homa Bay, Migori, Kisii and Nyamira.
The National Council for Law Reporting, Kenya Law Reform Commission, Council of Governors, Judiciary, Attorney-General and Director of Public Prosecutions are also respondents.
The interested parties include several individuals identified in the petition as officials of the Kiambu County Government, as well as the Kiambu County Police Commander and the Kiambu County Administration Police Commandant.
The petitioners have accused various government agencies of creating uncertainty over the legal status of county legislation by treating county laws as being in force without, in their view, adequately establishing compliance with the constitutional publication requirement.
These allegations, however, remain contested issues for determination by the court, and the respondents have yet to file their responses.
Justice Nyaudi’s directions do not determine the substantive questions raised in the petition. Instead, they set out the procedure through which the parties will be served and heard before the court considers the constitutional issues.
The decision to allow substituted service is significant given the large number of respondents and interested parties involved in the case. The court has permitted the petitioners to notify the parties through publication rather than requiring individual physical service on all the respondents and interested parties.
The petitioners had argued that physically serving all the parties would be costly and time-consuming, given their limited financial resources.
They now have seven days from the date of the court’s directions to publish the Notice of Motion together with the order in a newspaper of wide circulation.
The respondents will then have an opportunity to respond to the petitioners’ claims before the matter proceeds to the next stage.
The petition is likely to attract significant public interest because a determination on the meaning and application of the constitutional requirement for publication of county legislation could have implications for county laws enacted across the country.
However, any determination on the validity, enforceability or constitutional compliance of the legislation cited in the petition will await the hearing and determination of the case.
The matter is scheduled to return before the High Court on September 22, 2026, when the parties are expected to confirm compliance with the court’s directions and receive further directions on the hearing of the petition.
