REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CONSTITUTIONAL PETITION NUMBER 10 OF 2019
COUNTY GOVERNMENT
OF BUNGOMA ........................................ 1ST APPLICANT
THE GOVERNOR, COUNTY GOVERNMENT
OF BUNGOMA ................................................... 2ND APPLICANT
VERSUS
WABUKOYI ABDALLA MUHAMMED & 8 OTHERS ......... RESPONDENTS
RULING
Introduction
1. The Applicants moved this Court by way of a Notice of Motion supported by the Affidavit of Dr. Rashid Fwamba, sworn on 25th February 2026. The Application seeks clarification and relief following the Judgment of this Court delivered on 21st July 2020, specifically concerning the distinction between the processes for Chwele and Webuye municipalities.
Facts
2. The Application is premised on the Supporting Affidavit of Dr. Rashid Fwamba, the Chief Officer for Municipalities. The Applicant depones that while the 2020 Judgment identified a lack of evidence for public participation regarding the inclusion of Namwela Ward into Chwele, the process for Webuye Municipality was entirely distinct and procedurally sound.
3. The Applicants state, and this Court notes from the record, that all statutory and procedural steps for the conferment of municipality status in Webuye had been fully undertaken. These steps included:
a. The appointment and gazettement of an Ad-hoc committee via Gazette Notice No. 6879 of 26th July 2019.
b. Publication of the Notice of Intention to delineate boundaries in the Daily Nation.
c. The successful conduct of public participation for Webuye, with the relevant reports and memoranda prepared for the County Assembly's deliberation (pp. 5, 18).
4. The Applicant argues that the stalemate resulting from the previous conservatory order has unfairly stalled the Webuye process, which met all the criteria under the Urban Areas and Cities Act.
5. Notably, the Respondents have failed to file any response or Replying Affidavit to these specific averments, leaving the facts deponed by the Applicant uncontroverted.
Issues
6. The primary issue is whether the procedural validity of the Webuye municipality process, which has not been successfully challenged, justifies the granting of the orders sought in the absence of any opposition from the Respondents.
Analysis
7. Under Section 87 and 91 of the County Government Act, the core requirement for urban delineation is the conduct of public participation. While this Court previously found the Chwele process lacking in evidence of actual meetings, the Applicant has now clarified that the Webuye process was distinct and fully compliant.
8. It is a trite principle of law that facts deponed in a supporting affidavit that are not countered by a replying affidavit are deemed admitted. As the Respondents have not contested the Applicant’s assertion that all steps for Webuye’s conferment were completed, the Court accepts these facts as true. To continue stalling a procedurally correct process due to a localized error in Chwele would be a violation of the principle of Article 159(2)(d), which discourages undue regard to technicalities that impede substantive justice.
Conclusion
9. The Application being unopposed and the Court being satisfied that the Webuye Municipality process was procedurally complete, the Application is merited and the following orders are issued;
a. The Application dated 25th February 2026 is hereby allowed as prayed.
b. It is hereby declared that the conservatory orders issued on 21st July 2020 do not apply to the process of conferment of municipality status for Webuye, as all requisite legal and procedural steps for Webuye have been undertaken.
c. The Applicants are at liberty to proceed with the formal gazettement and establishment of Webuye Municipality.
d. Each party shall bear its own costs.
Delivered, Dated and Signed at Bungoma this 3rd day of March, 2026.
Hon. M.S Shariff
Judge
IN THE HIGH COURT OF KENYA AT BUNGOMA
CONSTITUTIONAL PETITION NUMBER 10 OF 2019
COUNTY GOVERNMENT
OF BUNGOMA ........................................ 1ST APPLICANT
THE GOVERNOR, COUNTY GOVERNMENT
OF BUNGOMA ................................................... 2ND APPLICANT
VERSUS
WABUKOYI ABDALLA MUHAMMED & 8 OTHERS ......... RESPONDENTS
RULING
Introduction
1. The Applicants moved this Court by way of a Notice of Motion supported by the Affidavit of Dr. Rashid Fwamba, sworn on 25th February 2026. The Application seeks clarification and relief following the Judgment of this Court delivered on 21st July 2020, specifically concerning the distinction between the processes for Chwele and Webuye municipalities.
Facts
2. The Application is premised on the Supporting Affidavit of Dr. Rashid Fwamba, the Chief Officer for Municipalities. The Applicant depones that while the 2020 Judgment identified a lack of evidence for public participation regarding the inclusion of Namwela Ward into Chwele, the process for Webuye Municipality was entirely distinct and procedurally sound.
3. The Applicants state, and this Court notes from the record, that all statutory and procedural steps for the conferment of municipality status in Webuye had been fully undertaken. These steps included:
a. The appointment and gazettement of an Ad-hoc committee via Gazette Notice No. 6879 of 26th July 2019.
b. Publication of the Notice of Intention to delineate boundaries in the Daily Nation.
c. The successful conduct of public participation for Webuye, with the relevant reports and memoranda prepared for the County Assembly's deliberation (pp. 5, 18).
4. The Applicant argues that the stalemate resulting from the previous conservatory order has unfairly stalled the Webuye process, which met all the criteria under the Urban Areas and Cities Act.
5. Notably, the Respondents have failed to file any response or Replying Affidavit to these specific averments, leaving the facts deponed by the Applicant uncontroverted.
Issues
6. The primary issue is whether the procedural validity of the Webuye municipality process, which has not been successfully challenged, justifies the granting of the orders sought in the absence of any opposition from the Respondents.
Analysis
7. Under Section 87 and 91 of the County Government Act, the core requirement for urban delineation is the conduct of public participation. While this Court previously found the Chwele process lacking in evidence of actual meetings, the Applicant has now clarified that the Webuye process was distinct and fully compliant.
8. It is a trite principle of law that facts deponed in a supporting affidavit that are not countered by a replying affidavit are deemed admitted. As the Respondents have not contested the Applicant’s assertion that all steps for Webuye’s conferment were completed, the Court accepts these facts as true. To continue stalling a procedurally correct process due to a localized error in Chwele would be a violation of the principle of Article 159(2)(d), which discourages undue regard to technicalities that impede substantive justice.
Conclusion
9. The Application being unopposed and the Court being satisfied that the Webuye Municipality process was procedurally complete, the Application is merited and the following orders are issued;
a. The Application dated 25th February 2026 is hereby allowed as prayed.
b. It is hereby declared that the conservatory orders issued on 21st July 2020 do not apply to the process of conferment of municipality status for Webuye, as all requisite legal and procedural steps for Webuye have been undertaken.
c. The Applicants are at liberty to proceed with the formal gazettement and establishment of Webuye Municipality.
d. Each party shall bear its own costs.
Delivered, Dated and Signed at Bungoma this 3rd day of March, 2026.
Hon. M.S Shariff
Judge