REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E041 OF 2026
IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 26, 42, 43, 47, 73, 75, 79, 159, 232 AND 258 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE QUANTITY SURVEYORS ACT, CAP 525, THE FAIR ADMINISTRATIVE ACTION ACT, THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS ACT, THE NATIONAL CONSTRUCTION AUTHORITY ACT, AND THE PHYSICAL AND LAND USE PLANNING ACT
AND
IN THE MATTER OF THE COLLAPSE OF A BUILDING UNDER CONSTRUCTION AT KAREN, LANG’ATA SUB- COUNTY, NAIROBI CITY COUNTY
-BETWEEN-
FRANCIS AWINO ……………………………………………... PETITIONER
-VERSUS-
THE QUANTITY SURVEYORS’
REGISTRATION BOARD …………………………….… 1 ST RESPONDENT
THE INSTITUTE OF QUANTITY
SURVEYORS OF KENYA ................................................ 2 ND RESPONDENT
THE OFFICE OF THE DIRECTOR OF
PUBLIC PROSECUTIONS ............................................... 3 RD RESPONDENT
-AND-
MOSES A. NYAKIOGORA ………………………… INTERESTED PARTY
JUDGMENT
Introduction
1. The Petitioner, Francis Awino, describes himself as an adult Kenyan citizen of sound mind, a human rights activist and public interest litigant, bringing this Petition pursuant to Articles 22 and 258 of the Constitution of Kenya 2010, in defence of the Constitution, the Bill of Rights, public safety, accountability, and the rule of law.
2. The 1 st Respondent, The Quantity Surveyors Registration Board, is a statutory body established under the Quantity Surveyors Act, Cap 525 Laws of Kenya, mandated to regulate the registration, discipline, and professional conduct of Quantity Surveyors, and is constitutionally bound to protect the public interest, public safety, and professional integrity.
3. The 2 nd Respondent, The Institute of Quantity Surveyors of Kenya (IQSK), is a professional body charged with upholding ethical standards, discipline and accountability among its members and is similarly bound by the Constitution, statute and public trust.
4. The 3 rd Respondent, The Office of The Director of Public Prosecutions (ODPP), is a constitutional office established under Article 157 of the Constitution with the mandate to independently institute and undertake criminal proceedings in a lawful, fair, impartial, and accountable manner.
5. The factual background of the Petition is that in January 2026, a multi‑storey building under construction collapsed in Karen, along Ngong Road in Lang’ata Sub‑County, Nairobi City County. The collapse occurred while workers were on site, leading to fatalities, serious bodily injuries, permanent physical harm, psychological trauma and destruction of property.
6. Subsequently, investigations by the National Construction Authority (NCA) confirmed that the project had been undertaken without mandatory registration, approvals, inspections, or compliance certifications as required under the National Construction Authority Act. Preliminary observations attributed the disaster to poor workmanship, inadequate structural support, non‑compliance with approved plans and disregard for statutory safeguards.
7. The National Construction Authority (NCA) identified Moses A. Nyakiogora, a registered Quantity Surveyor and former Chairman of both the Institute of Quantity Surveyors of Kenya (IQSK) and the Building Inspectorate, as the developer and person in effective control of the collapsed project.
8. Despite the fatalities and clear statutory breaches, the Petition alleges that regulatory and prosecutorial bodies failed to act. That the Quantity Surveyors Registration Board the 1 st Respondent herein and the IQSK the 2 nd Respondent did not institute disciplinary proceedings, conduct hearings, render findings, or impose sanctions against the Interested Party.
9. It is further claimed that the Office of the Director of Public Prosecutions, the 3 rd Respondent herein, failed to initiate criminal investigations or prosecutions for potential offenses such as manslaughter, criminal negligence, abuse of office and planning law violations. The Petitioner pleads that this regulatory and prosecutorial inaction underscores systemic gaps in accountability, leaving victims without justice and undermining the integrity of professional and public oversight in the construction sector.
The Petition
10. The Petition dated 20 th January 2026 seeks the following reliefs:
(a) A DECLARATION that the failure of the 1 st and 2 nd Respondents to commence and conclude disciplinary proceedings against the Interested Party is unconstitutional and unlawful;
(b) A DECLARATION that the inaction of the 3 rd Respondent violates Articles 10, 26, 47, 73, 75, and 232 of the Constitution;
(c) AN ORDER OF MANDAMUS compelling the 1 st Respondent to immediately commence and conclude disciplinary proceedings against the Interested Party;
(d) AN ORDER OF MANDAMUS compelling the 2 nd Respondent to suspend or revoke the Interested Party's membership pending determination of culpability;
(e) AN ORDER OF MANDAMUS compelling the 3 rd Respondent to undertake and conclude comprehensive criminal investigations and make a prosecutorial decision;
(f) A DECLARATION that deaths arising from illegal construction attract criminal and professional liability;
(g) Any other or further orders this Honourable Court may deem just and fit;
(h) Costs of this Petition.
11. The Petition is premised on the grounds and the facts on the face of it and further supported by an affidavit sworn by the Petitioner who acts pro se , on even date with the Petition.
Response
12. In response to the Petition, only the 3 rd Respondent , the Director of Public Prosecutions, filed Grounds of Opposition dated 4 th February 2026 contending that the petition is premature, misconceived, bad in law and an abuse of the court process.
13. The 3 rd Respondent states that under Section 24 of the National Police Service Act, police carry out criminal investigations, whereas the ODPP’s mandate under Article 157 of the Constitution is limited to making prosecutorial decisions. Thus, an Order of Mandamus asking the 3 rd Respondent to investigate is legally misplaced.
14. Further, the 3 rd Respondent states that it has already directed that investigations be carried out expeditiously and the result inquiry file be forwarded to its office for review, meaning no final decision to charge has been made yet.
15. Consequently, the 3 rd Respondent asserts in its Grounds that the Petitioner has failed to demonstrate any constitutional violation of rights and that the petitioner has offended the Doctrine of Exhaustion by prematurely filing the petition before seeking a status update on pending investigations or decisions against persons of interest.
16. For these reasons, the 3 rd Respondent maintains that the Petition is a non-starter and prays for its dismissal with costs.
Further Affidavit
17. The Petitioner filed a further Affidavit sworn on 4 th March 2026 responding to the 3 rd Respondent’s Grounds of Opposition in which he deposes that his Petition raises serious constitutional concerns regarding an illegal construction incident.
18. The Petitioner reiterates the facts in the Petition and states that in January 2026, a multi-storey building under construction on Plot No. 12882/197 along Ngong View Lane in Karen, Lang’ata Sub-County, collapsed during concrete casting works and that this incident resulted in two fatalities, two critical injuries and minor injuries to seven other individuals. He reiterates that the plot and development are tied to the Interested Party, Mr. Moses A. Nyakiogora a registered Quantity Surveyor listed as a Fellow in good standing with the Institute of Quantity Surveyors of Kenya (IQSK) and a former Chairman of the IQSK and the Building Inspectorate.
19. The Petitioner highlights that the National Construction Authority (NCA) publicly confirmed that the project lacked mandatory registrations, statutory approvals, and required inspections prior to the collapse, leading the NCA to issue a formal suspension order. That preliminary findings indicated the collapse stemmed from unlawful construction practices, unapproved plans, poor workmanship, and a failure of the formwork system under the weight of fresh concrete.
20. It is his deposition that despite these severe statutory breaches and the loss of lives, the Quantity Surveyors Registration Board, the 1 st Respondent, the Institute of Quantity Surveyors of Kenya -2 nd Respondent and the Office of the Director of Public Prosecutions-mv 3 rd Respondent have failed to initiate any disciplinary or criminal proceedings against the developer.
21. The Petitioner contends that this institutional inaction directly breaches fundamental constitutional guarantees, including the right to life, public safety and fair administrative action while fostering impunity within Kenya’s construction industry.
22. The petition was canvassed by way of written submissions.
Submissions
23. The Petitioner’s submissions are dated 25 th May 2026 . He isolates seven issues for determination:
i. Whether the Petition is properly before this Court and meets constitutional thresholds;
ii. Whether the Petitioner has locus standi;
iii. Whether the failure by the 1 st and 2 nd Respondents to act amounts to violation of constitutional and statutory obligations;
iv. Whether the inaction complained of violates Articles 10, 26, 47, 73 and 232;
v. Whether the Petition is premature and barred by exhaustion;
vi. Whether the relief of mandamus is available and
vii. Whether the Petition should be allowed.
24. The petitioner commences with the question of locus standi and submits that the Court of Appeal in the Mumo Matemu case observed that Articles 22 and 258 of the Constitution fundamentally transformed the law of standing by replacing historical restrictions with an expansive, public-interest model. That litigants are no longer required to demonstrate direct personal injury, proprietary harm or a unique private interest to approach the court. He asserts that public interest entities and individual citizens possess constitutional standing to file proceedings to defend the rule of law and challenge alleged constitutional breaches, provided the litigation is brought bona fide and is not hypothetical, abstract or an abuse of the court process.
25. He submits that the Constitution establishes a broad, citizen-centered model allowing litigation to be brought by individuals acting in their own interest, on behalf of others, as part of a group, or in the public interest and that this deliberate framework removes procedural obstacles to ensure citizens can hold public bodies accountable and preserve constitutional order without being limited to immediate victims.
26. It is submitted that because the Petition involves public safety, regulatory inaction, professional accountability and the protection of life following a fatal incident, the Petitioner retains proper locus standi as a public interest litigant. Under Article 3(1), every citizen has a duty to uphold the Constitution, making the suit a legitimate exercise of constitutional citizenship.
27. The Petitioner also cites the Court of Appeal’s decision in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] KECA 445 (KLR) which reaffirmed that constitutional pleadings must adhere to the standard established in Anarita Karimi Njeru v Republic [1979] KLR. He outlines that to establish a valid constitutional petition, a litigant is required to plead with reasonable precision the specific constitutional provisions alleged to have been violated, the exact acts or omissions complained of, and the specific remedies sought.
28. The Petitioner submits on the 1 st issue that although the Court of Appeal clarified that Anarita Karimi Njeru should not be applied mechanically or formalistically to create procedural hurdles to public interest access, it emphasized that procedural rules remain essential to afford fair notice to adverse parties and define the precise matters in dispute. That where a Petition relies on generalized allegations of constitutional infringements without setting out basic underlying facts and particulars, it fails to meet the requisite standard of constitutional pleading.
29. He states that the Petition meets this threshold by specifically identifying the violated constitutional provisions, Articles 10, 26, 47, 73, 75 and 232 , detailing the specific omissions regarding statutory duties and regulatory inaction, naming the responsible public bodies, outlining the concrete reliefs sought, and setting out an extensive factual foundation. He asserts that with the factual averments remaining largely uncontroverted by the key Respondents, the matter presents a live constitutional controversy properly before the Court for determination on its merits.
30. On the third issue it is submitted that the 1 st and 2 nd Respondents failed to discharge their binding constitutional and statutory obligations following the fatal building collapse. That under the 2010 Constitution, public authorities are constitutional fiduciaries required to actively discharge their mandates to protect public safety and rights. It is asserted that passivity is impermissible when human life and regulatory compliance are threatened, as statutory regulatory duties are affirmative, proactive and continuous rather than purely discretionary.
31. He adds that under Article 10 , principles of good governance, transparency, accountability and responsiveness require public bodies to demonstrate substantive engagement with their statutory duties. Article 232 reinforces these as enforceable constitutional requirements demanding high ethical standards, efficiency, and prompt responsiveness to public needs, while Article 47 guarantees fair, reasonable, and expeditious administrative action.
32. The petitioner relies on J udicial Service Commission v Mbalu Mutava and Dry Associates Limited v Capital Markets Authority in his submission that administrative justice is a direct constitutional imperative and that inaction or silence when action is required constitutes an unlawful breach of Article 4 .
33. The Petitioner emphasizes that he is not asking the Court to take over regulatory or disciplinary functions. Rather, the complaint is that despite a public tragedy involving loss of life, the 1 st and 2 nd Respondents failed to initiate any form of investigation, enforcement, inspection, or preliminary inquiry. That this regulatory silence and total abdication of responsibility in the face of foreseeable risk to fundamental rights violates constitutional duties, inviting judicial intervention.
34. It is the Petitioner’s further submission that the Respondents’ complete failure to act or investigate following a fatal incident constitutes a multi-layered breach of constitutional duties rather than a mere administrative oversight. That by failing to take proactive steps against known public safety hazards, the Respondents violated the positive obligation under Article 26 to protect human life. Furthermore, this institutional silence and unjustified delay infringe upon Article 47 and the Fair Administrative Action Act , which demand that administrative justice cover both actions and omissions through reasonable, prompt, and rational procedures.
35. Additionally, he argues that this sustained inaction undermines the overarching values of public governance and administrative integrity. That by ignoring the tragedy, the Respondents breached Article 10’s national values of transparency and accountability, as well as Article 73’s mandate that public authority remain a public trust. Coupled with a failure to meet the efficiency and responsiveness standards required of public service under Article 232, it is submitted that this institutional neglect severely erodes public confidence, necessitating direct judicial intervention to restore constitutional compliance and the rule of law.
36. No submissions were made with respect to issues 5, 6 and 7.
37. The 3 rd Respondent, the Director of Public Prosecutions (DPP), filed written submissions dated 21 st May 2026 . It is submitted that the Petition is premature, speculative and completely devoid of merit, as no investigation file has yet to be forwarded to its office for review or decision-making. Relying on Anarita Karimi Njeru v Republic and Mumo Matemu v Trusted Society of Human Rights Alliance , the DPP argues that constitutional claims require a ripe, identifiable dispute rather than hypothetical grievances.
38. The DPP contends that its constitutional mandate under Article 157 is strictly to independently evaluate evidence and make prosecutorial decisions, not to conduct criminal investigations, which legally fall under the domain of the National Police Service pursuant to Section 24 of the National Police Service Act . Consequently, that compelling the DPP to carry out investigations would violate the constitutional division of powers among state organs.
39. The DPP further maintains that the Petitioner has failed to meet the required evidentiary threshold to demonstrate any violation of constitutional rights under Articles 10, 26, 47, 73, or 232 . That directives have already been issued to expedite investigations, meaning the DPP has acted fully within his legal bounds, and that mere dissatisfaction with the speed of an ongoing inquiry does not amount to a constitutional breach.
40. Relying on Diamond Hasham Lalji and Meixner v Attorney General , the DPP submits that courts must safeguard prosecutorial independence under Article 157(10) unless clear evidence shows illegality, bad faith, or abuse of power.
41. Finally, the DPP argues that the petition offends the doctrine of exhaustion established in Speaker of the National Assembly v Karume by bypassing administrative processes without exceptional justification, thereby rendering the petition an abuse of the court process. He urges the court to dismiss the petition with costs.
Analysis and Determination
42. I have considered the petition and response by the 3 rd respondent as well as their written submissions. The following issues arise for determination: -
(i) Whether the Petitioner has locus standi
(ii) Whether the Petition is premature and barred by the doctrine of exhaustion and or constitutional avoidance.
Whether the Petitioner has locus standi
43. The issue of locus standi is now well settled. In William Odhiambo Ramogi & 2 Others vs. Attorney General & 6 Others [2018] eKLR , the court stated that: -
“68. ……. The judicial approach to locus standi has been relaxed post-2010 courtesy of Articles 22 and 258 of the Constitution. The import of the said provisions is that every person has the right to institute Court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened or claiming that the Constitution has been contravened or is threatened with contravention. In addition to a person acting in their own interest, Court proceedings under Articles 22(1) and 258(1) of the Constitution may be instituted by—
a. a person acting on behalf of another person who cannot act in their own name;
b. a person acting as a member of, or in the interest of, a group or class of persons;
c. a person acting in the public interest; or
d. an association acting in the interest of one or more of its members.
69. The issue of locus standi in Constitutional Petitions is now well settled. The Court of Appeal in Nairobi Civil Appeal No. 290 of 2012 Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others (2013) eKLR substantively dealt with the issue and laid down the applicable test which was affirmed by the Supreme Court. In that case it was argued that the Respondent, an NGO (Trusted Society of Human Rights Alliance) whose mandate included the pursuit of constitutionalism lacked locus standi to challenge the appointment of Mumo Matemu as the Chair of the Ethics and Anti-Corporation Commission. In responding to the question, the Court of Appeal firmly stated as follows:
26. It is hard to maintain the argument that the first respondent did not suffer any injury to warrant this standing to lodge the Petition before the High Court. It is equally hard to maintain the position that the first Respondent was acting as an interlocutor for a private third party, in a matter of public interest such as this. In the context of our commitment to integrity in leadership as expressed in the Constitution, we cannot gainsay the importance of the issue of the leadership and institutional integrity of the Ethic and Anti-Corruption Commission.
27. More so, we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under Article 10 of the Constitution by necessity and logic broadens access to the Courts. In this broader context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the Courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. In the case at hand, the Petition was filed before the High Court by an NGO whose mandate includes pursuit of constitutionalism and we therefore reject the arguments of lack of standing by Counsel for the Appellant. We hold that in the absence of a showing of bad faith as claimed by the Appellant, without more, the first Respondent had the locus standi to file the Petition. Apart from this, we agree with the Superior Court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution....
28. It still remains to reiterate that the landscape of locus standi has been fundamentally transformed by the enactment of the Constitution in 2010 by the people themselves. In our view, the hitherto stringent locus standi requirements of consent of the Attorney General or demonstration of some specific interest by a private citizen seeking to enforce a public right have been buried in the annals of history. Today, by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest …
29. It may therefore now be taken as well established that where a legal wrong or injury is caused or threatened to a person or to a determinate class of persons by reason of violation of any constitutional or legal right, or any burden is imposed in contravention of any constitutional or legal provision, or without authority of law, and such person or determinate class of persons is, by reasons of poverty, helplessness, disability or socio-economic disadvantage, unable to approach the Court for relief, any member of the public can maintain an application for appropriate direction, order or writ in the High Court under Articles 22 and 258 of the Constitution …”
44. Articles 22 and 258 of the Constitution create a broad standing for parties to institute constitutional proceedings. Article 22(2) enlarges the class of people who can file constitutional suits by stipulating that any person can bring proceedings on behalf of another whose rights are threatened, on behalf of a group or class of persons, or in the public interest.
45. Article 258(2) empowers any person to institute proceedings claiming that the Constitution has been contravened, whether or not that person has suffered personal injury or proprietary loss. This expansion reflects a deliberate constitutional design to promote access to justice and safeguard public interest by ensuring that violations of the Constitution can be challenged even where individual harm is not easily demonstrable.
46. In the present case, the Petitioner approaches the Court as a public interest litigant following a fatal construction collapse those questions public safety, regulatory compliance and professional accountability. He asserts that the collapse resulted in loss of life, serious injuries and destruction of property, raising systemic questions of governance and enforcement of statutory safeguards.
47. By invoking Articles 22 and 258 , the Petitioner places the claim within the broader public interest, seeking judicial intervention to prevent recurrence and to enforce constitutional obligations of accountability.
48. I therefore find that the Petitioner has demonstrated sufficient locus standi , as the matter transcends individual grievances and touches on fundamental constitutional values of human dignity, safety and the rule of law.
ii. Whether the is premature and barred by the doctrine of exhaustion.
49. The exhaustion of remedies doctrine has been explained in several authorities. The Court of Appeal in National Assembly v. Njenga Karume [1992] 1KLR 425 held that:-
“There was considerable merit in the submission that where there was a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of parliament that procedure should have been strictly followed.”
50. In Republic v IEBC Ex Parte NASA-Kenya & 6 Others [2017] eKLR , the doctrine of exhaustion was well laid out by a three-judge bench as follows:-
“42. This doctrine [of exhaustion] is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words: -
‘Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.’
43.While this case was decided before the Constitution of Kenya, 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthinja Kabiru & 2 Others – vs – Samuel Munga Henry & 1756 Others [2015] eKLR, where the Court of Appeal stated that:-
It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews….. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.
51. The Petitioner seeks an order of mandamus compelling the 3 rd Respondent to conduct criminal investigations and make a prosecutorial decision. He also decries inaction by the Regulators, who are the 1 st and 2 nd respondents herein and the police, the latter who are not parties to the petition. In this regard, I find it necessary to set out the constitutional and statutory division of functions between investigative and regulatory agencies and the Office of the Director of Public Prosecutions (ODPP).
52. Article 157 of the Constitution vests the ODPP with the power to institute and undertake criminal proceedings. This role is limited to prosecutorial powers only and does not confer investigative powers. Section 24 of the National Police Service Act , on the other hand, provides the mandate of criminal investigations, including interviewing witnesses, gathering evidence, and compiling inquiry files to the National Police Service through its Directorate of Criminal Investigations. In both cases, none of these functions is subject to the control of any person or office. The regulators on their part, the 1 st and 2 nd respondents, regulate the practice of the respective professions and set standards for the professionals in the respective professions.
53. Accordingly, while the ODPP has the constitutional authority to review evidence and decide whether to prosecute, it cannot itself initiate or conduct investigations. The proper course is for the National Police Service to carry out investigations and submit the investigations file to the ODPP, which latter then exercises its discretion under Article 157(6) to prosecute or decline prosecution.
54. Section 11 of the Architects and Quantity Surveyors Act ( AQS Ac t) provides for removal of a person registered under the Act from the Register is such person has, among other things, been found by the Board to be guilty of misconduct as is described in section 13 of the Act .
55. Under the Architects and Quantity Surveyors Act:
13. Orders to suspend registration, etc.
If any person registered under this Act is convicted of an offence under this Act, or is, after due inquiry held by the Board, found to have been guilty of any act or omission amounting to improper or disgraceful conduct in a professional respect the Board may—
(a) caution or censure such person;
(b) direct that, during such period as the Board may specify, his registration shall not have effect;
(c) impose a fine not
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E041 OF 2026
IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 26, 42, 43, 47, 73, 75, 79, 159, 232 AND 258 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE QUANTITY SURVEYORS ACT, CAP 525, THE FAIR ADMINISTRATIVE ACTION ACT, THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS ACT, THE NATIONAL CONSTRUCTION AUTHORITY ACT, AND THE PHYSICAL AND LAND USE PLANNING ACT
AND
IN THE MATTER OF THE COLLAPSE OF A BUILDING UNDER CONSTRUCTION AT KAREN, LANG’ATA SUB- COUNTY, NAIROBI CITY COUNTY
-BETWEEN-
FRANCIS AWINO ……………………………………………... PETITIONER
-VERSUS-
THE QUANTITY SURVEYORS’
REGISTRATION BOARD …………………………….… 1 ST RESPONDENT
THE INSTITUTE OF QUANTITY
SURVEYORS OF KENYA ................................................ 2 ND RESPONDENT
THE OFFICE OF THE DIRECTOR OF
PUBLIC PROSECUTIONS ............................................... 3 RD RESPONDENT
-AND-
MOSES A. NYAKIOGORA ………………………… INTERESTED PARTY
JUDGMENT
Introduction
1. The Petitioner, Francis Awino, describes himself as an adult Kenyan citizen of sound mind, a human rights activist and public interest litigant, bringing this Petition pursuant to Articles 22 and 258 of the Constitution of Kenya 2010, in defence of the Constitution, the Bill of Rights, public safety, accountability, and the rule of law.
2. The 1 st Respondent, The Quantity Surveyors Registration Board, is a statutory body established under the Quantity Surveyors Act, Cap 525 Laws of Kenya, mandated to regulate the registration, discipline, and professional conduct of Quantity Surveyors, and is constitutionally bound to protect the public interest, public safety, and professional integrity.
3. The 2 nd Respondent, The Institute of Quantity Surveyors of Kenya (IQSK), is a professional body charged with upholding ethical standards, discipline and accountability among its members and is similarly bound by the Constitution, statute and public trust.
4. The 3 rd Respondent, The Office of The Director of Public Prosecutions (ODPP), is a constitutional office established under Article 157 of the Constitution with the mandate to independently institute and undertake criminal proceedings in a lawful, fair, impartial, and accountable manner.
5. The factual background of the Petition is that in January 2026, a multi‑storey building under construction collapsed in Karen, along Ngong Road in Lang’ata Sub‑County, Nairobi City County. The collapse occurred while workers were on site, leading to fatalities, serious bodily injuries, permanent physical harm, psychological trauma and destruction of property.
6. Subsequently, investigations by the National Construction Authority (NCA) confirmed that the project had been undertaken without mandatory registration, approvals, inspections, or compliance certifications as required under the National Construction Authority Act. Preliminary observations attributed the disaster to poor workmanship, inadequate structural support, non‑compliance with approved plans and disregard for statutory safeguards.
7. The National Construction Authority (NCA) identified Moses A. Nyakiogora, a registered Quantity Surveyor and former Chairman of both the Institute of Quantity Surveyors of Kenya (IQSK) and the Building Inspectorate, as the developer and person in effective control of the collapsed project.
8. Despite the fatalities and clear statutory breaches, the Petition alleges that regulatory and prosecutorial bodies failed to act. That the Quantity Surveyors Registration Board the 1 st Respondent herein and the IQSK the 2 nd Respondent did not institute disciplinary proceedings, conduct hearings, render findings, or impose sanctions against the Interested Party.
9. It is further claimed that the Office of the Director of Public Prosecutions, the 3 rd Respondent herein, failed to initiate criminal investigations or prosecutions for potential offenses such as manslaughter, criminal negligence, abuse of office and planning law violations. The Petitioner pleads that this regulatory and prosecutorial inaction underscores systemic gaps in accountability, leaving victims without justice and undermining the integrity of professional and public oversight in the construction sector.
The Petition
10. The Petition dated 20 th January 2026 seeks the following reliefs:
(a) A DECLARATION that the failure of the 1 st and 2 nd Respondents to commence and conclude disciplinary proceedings against the Interested Party is unconstitutional and unlawful;
(b) A DECLARATION that the inaction of the 3 rd Respondent violates Articles 10, 26, 47, 73, 75, and 232 of the Constitution;
(c) AN ORDER OF MANDAMUS compelling the 1 st Respondent to immediately commence and conclude disciplinary proceedings against the Interested Party;
(d) AN ORDER OF MANDAMUS compelling the 2 nd Respondent to suspend or revoke the Interested Party's membership pending determination of culpability;
(e) AN ORDER OF MANDAMUS compelling the 3 rd Respondent to undertake and conclude comprehensive criminal investigations and make a prosecutorial decision;
(f) A DECLARATION that deaths arising from illegal construction attract criminal and professional liability;
(g) Any other or further orders this Honourable Court may deem just and fit;
(h) Costs of this Petition.
11. The Petition is premised on the grounds and the facts on the face of it and further supported by an affidavit sworn by the Petitioner who acts pro se , on even date with the Petition.
Response
12. In response to the Petition, only the 3 rd Respondent , the Director of Public Prosecutions, filed Grounds of Opposition dated 4 th February 2026 contending that the petition is premature, misconceived, bad in law and an abuse of the court process.
13. The 3 rd Respondent states that under Section 24 of the National Police Service Act, police carry out criminal investigations, whereas the ODPP’s mandate under Article 157 of the Constitution is limited to making prosecutorial decisions. Thus, an Order of Mandamus asking the 3 rd Respondent to investigate is legally misplaced.
14. Further, the 3 rd Respondent states that it has already directed that investigations be carried out expeditiously and the result inquiry file be forwarded to its office for review, meaning no final decision to charge has been made yet.
15. Consequently, the 3 rd Respondent asserts in its Grounds that the Petitioner has failed to demonstrate any constitutional violation of rights and that the petitioner has offended the Doctrine of Exhaustion by prematurely filing the petition before seeking a status update on pending investigations or decisions against persons of interest.
16. For these reasons, the 3 rd Respondent maintains that the Petition is a non-starter and prays for its dismissal with costs.
Further Affidavit
17. The Petitioner filed a further Affidavit sworn on 4 th March 2026 responding to the 3 rd Respondent’s Grounds of Opposition in which he deposes that his Petition raises serious constitutional concerns regarding an illegal construction incident.
18. The Petitioner reiterates the facts in the Petition and states that in January 2026, a multi-storey building under construction on Plot No. 12882/197 along Ngong View Lane in Karen, Lang’ata Sub-County, collapsed during concrete casting works and that this incident resulted in two fatalities, two critical injuries and minor injuries to seven other individuals. He reiterates that the plot and development are tied to the Interested Party, Mr. Moses A. Nyakiogora a registered Quantity Surveyor listed as a Fellow in good standing with the Institute of Quantity Surveyors of Kenya (IQSK) and a former Chairman of the IQSK and the Building Inspectorate.
19. The Petitioner highlights that the National Construction Authority (NCA) publicly confirmed that the project lacked mandatory registrations, statutory approvals, and required inspections prior to the collapse, leading the NCA to issue a formal suspension order. That preliminary findings indicated the collapse stemmed from unlawful construction practices, unapproved plans, poor workmanship, and a failure of the formwork system under the weight of fresh concrete.
20. It is his deposition that despite these severe statutory breaches and the loss of lives, the Quantity Surveyors Registration Board, the 1 st Respondent, the Institute of Quantity Surveyors of Kenya -2 nd Respondent and the Office of the Director of Public Prosecutions-mv 3 rd Respondent have failed to initiate any disciplinary or criminal proceedings against the developer.
21. The Petitioner contends that this institutional inaction directly breaches fundamental constitutional guarantees, including the right to life, public safety and fair administrative action while fostering impunity within Kenya’s construction industry.
22. The petition was canvassed by way of written submissions.
Submissions
23. The Petitioner’s submissions are dated 25 th May 2026 . He isolates seven issues for determination:
i. Whether the Petition is properly before this Court and meets constitutional thresholds;
ii. Whether the Petitioner has locus standi;
iii. Whether the failure by the 1 st and 2 nd Respondents to act amounts to violation of constitutional and statutory obligations;
iv. Whether the inaction complained of violates Articles 10, 26, 47, 73 and 232;
v. Whether the Petition is premature and barred by exhaustion;
vi. Whether the relief of mandamus is available and
vii. Whether the Petition should be allowed.
24. The petitioner commences with the question of locus standi and submits that the Court of Appeal in the Mumo Matemu case observed that Articles 22 and 258 of the Constitution fundamentally transformed the law of standing by replacing historical restrictions with an expansive, public-interest model. That litigants are no longer required to demonstrate direct personal injury, proprietary harm or a unique private interest to approach the court. He asserts that public interest entities and individual citizens possess constitutional standing to file proceedings to defend the rule of law and challenge alleged constitutional breaches, provided the litigation is brought bona fide and is not hypothetical, abstract or an abuse of the court process.
25. He submits that the Constitution establishes a broad, citizen-centered model allowing litigation to be brought by individuals acting in their own interest, on behalf of others, as part of a group, or in the public interest and that this deliberate framework removes procedural obstacles to ensure citizens can hold public bodies accountable and preserve constitutional order without being limited to immediate victims.
26. It is submitted that because the Petition involves public safety, regulatory inaction, professional accountability and the protection of life following a fatal incident, the Petitioner retains proper locus standi as a public interest litigant. Under Article 3(1), every citizen has a duty to uphold the Constitution, making the suit a legitimate exercise of constitutional citizenship.
27. The Petitioner also cites the Court of Appeal’s decision in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] KECA 445 (KLR) which reaffirmed that constitutional pleadings must adhere to the standard established in Anarita Karimi Njeru v Republic [1979] KLR. He outlines that to establish a valid constitutional petition, a litigant is required to plead with reasonable precision the specific constitutional provisions alleged to have been violated, the exact acts or omissions complained of, and the specific remedies sought.
28. The Petitioner submits on the 1 st issue that although the Court of Appeal clarified that Anarita Karimi Njeru should not be applied mechanically or formalistically to create procedural hurdles to public interest access, it emphasized that procedural rules remain essential to afford fair notice to adverse parties and define the precise matters in dispute. That where a Petition relies on generalized allegations of constitutional infringements without setting out basic underlying facts and particulars, it fails to meet the requisite standard of constitutional pleading.
29. He states that the Petition meets this threshold by specifically identifying the violated constitutional provisions, Articles 10, 26, 47, 73, 75 and 232 , detailing the specific omissions regarding statutory duties and regulatory inaction, naming the responsible public bodies, outlining the concrete reliefs sought, and setting out an extensive factual foundation. He asserts that with the factual averments remaining largely uncontroverted by the key Respondents, the matter presents a live constitutional controversy properly before the Court for determination on its merits.
30. On the third issue it is submitted that the 1 st and 2 nd Respondents failed to discharge their binding constitutional and statutory obligations following the fatal building collapse. That under the 2010 Constitution, public authorities are constitutional fiduciaries required to actively discharge their mandates to protect public safety and rights. It is asserted that passivity is impermissible when human life and regulatory compliance are threatened, as statutory regulatory duties are affirmative, proactive and continuous rather than purely discretionary.
31. He adds that under Article 10 , principles of good governance, transparency, accountability and responsiveness require public bodies to demonstrate substantive engagement with their statutory duties. Article 232 reinforces these as enforceable constitutional requirements demanding high ethical standards, efficiency, and prompt responsiveness to public needs, while Article 47 guarantees fair, reasonable, and expeditious administrative action.
32. The petitioner relies on J udicial Service Commission v Mbalu Mutava and Dry Associates Limited v Capital Markets Authority in his submission that administrative justice is a direct constitutional imperative and that inaction or silence when action is required constitutes an unlawful breach of Article 4 .
33. The Petitioner emphasizes that he is not asking the Court to take over regulatory or disciplinary functions. Rather, the complaint is that despite a public tragedy involving loss of life, the 1 st and 2 nd Respondents failed to initiate any form of investigation, enforcement, inspection, or preliminary inquiry. That this regulatory silence and total abdication of responsibility in the face of foreseeable risk to fundamental rights violates constitutional duties, inviting judicial intervention.
34. It is the Petitioner’s further submission that the Respondents’ complete failure to act or investigate following a fatal incident constitutes a multi-layered breach of constitutional duties rather than a mere administrative oversight. That by failing to take proactive steps against known public safety hazards, the Respondents violated the positive obligation under Article 26 to protect human life. Furthermore, this institutional silence and unjustified delay infringe upon Article 47 and the Fair Administrative Action Act , which demand that administrative justice cover both actions and omissions through reasonable, prompt, and rational procedures.
35. Additionally, he argues that this sustained inaction undermines the overarching values of public governance and administrative integrity. That by ignoring the tragedy, the Respondents breached Article 10’s national values of transparency and accountability, as well as Article 73’s mandate that public authority remain a public trust. Coupled with a failure to meet the efficiency and responsiveness standards required of public service under Article 232, it is submitted that this institutional neglect severely erodes public confidence, necessitating direct judicial intervention to restore constitutional compliance and the rule of law.
36. No submissions were made with respect to issues 5, 6 and 7.
37. The 3 rd Respondent, the Director of Public Prosecutions (DPP), filed written submissions dated 21 st May 2026 . It is submitted that the Petition is premature, speculative and completely devoid of merit, as no investigation file has yet to be forwarded to its office for review or decision-making. Relying on Anarita Karimi Njeru v Republic and Mumo Matemu v Trusted Society of Human Rights Alliance , the DPP argues that constitutional claims require a ripe, identifiable dispute rather than hypothetical grievances.
38. The DPP contends that its constitutional mandate under Article 157 is strictly to independently evaluate evidence and make prosecutorial decisions, not to conduct criminal investigations, which legally fall under the domain of the National Police Service pursuant to Section 24 of the National Police Service Act . Consequently, that compelling the DPP to carry out investigations would violate the constitutional division of powers among state organs.
39. The DPP further maintains that the Petitioner has failed to meet the required evidentiary threshold to demonstrate any violation of constitutional rights under Articles 10, 26, 47, 73, or 232 . That directives have already been issued to expedite investigations, meaning the DPP has acted fully within his legal bounds, and that mere dissatisfaction with the speed of an ongoing inquiry does not amount to a constitutional breach.
40. Relying on Diamond Hasham Lalji and Meixner v Attorney General , the DPP submits that courts must safeguard prosecutorial independence under Article 157(10) unless clear evidence shows illegality, bad faith, or abuse of power.
41. Finally, the DPP argues that the petition offends the doctrine of exhaustion established in Speaker of the National Assembly v Karume by bypassing administrative processes without exceptional justification, thereby rendering the petition an abuse of the court process. He urges the court to dismiss the petition with costs.
Analysis and Determination
42. I have considered the petition and response by the 3 rd respondent as well as their written submissions. The following issues arise for determination: -
(i) Whether the Petitioner has locus standi
(ii) Whether the Petition is premature and barred by the doctrine of exhaustion and or constitutional avoidance.
Whether the Petitioner has locus standi
43. The issue of locus standi is now well settled. In William Odhiambo Ramogi & 2 Others vs. Attorney General & 6 Others [2018] eKLR , the court stated that: -
“68. ……. The judicial approach to locus standi has been relaxed post-2010 courtesy of Articles 22 and 258 of the Constitution. The import of the said provisions is that every person has the right to institute Court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened or claiming that the Constitution has been contravened or is threatened with contravention. In addition to a person acting in their own interest, Court proceedings under Articles 22(1) and 258(1) of the Constitution may be instituted by—
a. a person acting on behalf of another person who cannot act in their own name;
b. a person acting as a member of, or in the interest of, a group or class of persons;
c. a person acting in the public interest; or
d. an association acting in the interest of one or more of its members.
69. The issue of locus standi in Constitutional Petitions is now well settled. The Court of Appeal in Nairobi Civil Appeal No. 290 of 2012 Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others (2013) eKLR substantively dealt with the issue and laid down the applicable test which was affirmed by the Supreme Court. In that case it was argued that the Respondent, an NGO (Trusted Society of Human Rights Alliance) whose mandate included the pursuit of constitutionalism lacked locus standi to challenge the appointment of Mumo Matemu as the Chair of the Ethics and Anti-Corporation Commission. In responding to the question, the Court of Appeal firmly stated as follows:
26. It is hard to maintain the argument that the first respondent did not suffer any injury to warrant this standing to lodge the Petition before the High Court. It is equally hard to maintain the position that the first Respondent was acting as an interlocutor for a private third party, in a matter of public interest such as this. In the context of our commitment to integrity in leadership as expressed in the Constitution, we cannot gainsay the importance of the issue of the leadership and institutional integrity of the Ethic and Anti-Corruption Commission.
27. More so, we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under Article 10 of the Constitution by necessity and logic broadens access to the Courts. In this broader context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the Courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. In the case at hand, the Petition was filed before the High Court by an NGO whose mandate includes pursuit of constitutionalism and we therefore reject the arguments of lack of standing by Counsel for the Appellant. We hold that in the absence of a showing of bad faith as claimed by the Appellant, without more, the first Respondent had the locus standi to file the Petition. Apart from this, we agree with the Superior Court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution....
28. It still remains to reiterate that the landscape of locus standi has been fundamentally transformed by the enactment of the Constitution in 2010 by the people themselves. In our view, the hitherto stringent locus standi requirements of consent of the Attorney General or demonstration of some specific interest by a private citizen seeking to enforce a public right have been buried in the annals of history. Today, by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest …
29. It may therefore now be taken as well established that where a legal wrong or injury is caused or threatened to a person or to a determinate class of persons by reason of violation of any constitutional or legal right, or any burden is imposed in contravention of any constitutional or legal provision, or without authority of law, and such person or determinate class of persons is, by reasons of poverty, helplessness, disability or socio-economic disadvantage, unable to approach the Court for relief, any member of the public can maintain an application for appropriate direction, order or writ in the High Court under Articles 22 and 258 of the Constitution …”
44. Articles 22 and 258 of the Constitution create a broad standing for parties to institute constitutional proceedings. Article 22(2) enlarges the class of people who can file constitutional suits by stipulating that any person can bring proceedings on behalf of another whose rights are threatened, on behalf of a group or class of persons, or in the public interest.
45. Article 258(2) empowers any person to institute proceedings claiming that the Constitution has been contravened, whether or not that person has suffered personal injury or proprietary loss. This expansion reflects a deliberate constitutional design to promote access to justice and safeguard public interest by ensuring that violations of the Constitution can be challenged even where individual harm is not easily demonstrable.
46. In the present case, the Petitioner approaches the Court as a public interest litigant following a fatal construction collapse those questions public safety, regulatory compliance and professional accountability. He asserts that the collapse resulted in loss of life, serious injuries and destruction of property, raising systemic questions of governance and enforcement of statutory safeguards.
47. By invoking Articles 22 and 258 , the Petitioner places the claim within the broader public interest, seeking judicial intervention to prevent recurrence and to enforce constitutional obligations of accountability.
48. I therefore find that the Petitioner has demonstrated sufficient locus standi , as the matter transcends individual grievances and touches on fundamental constitutional values of human dignity, safety and the rule of law.
ii. Whether the is premature and barred by the doctrine of exhaustion.
49. The exhaustion of remedies doctrine has been explained in several authorities. The Court of Appeal in National Assembly v. Njenga Karume [1992] 1KLR 425 held that:-
“There was considerable merit in the submission that where there was a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of parliament that procedure should have been strictly followed.”
50. In Republic v IEBC Ex Parte NASA-Kenya & 6 Others [2017] eKLR , the doctrine of exhaustion was well laid out by a three-judge bench as follows:-
“42. This doctrine [of exhaustion] is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words: -
‘Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.’
43.While this case was decided before the Constitution of Kenya, 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthinja Kabiru & 2 Others – vs – Samuel Munga Henry & 1756 Others [2015] eKLR, where the Court of Appeal stated that:-
It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews….. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.
51. The Petitioner seeks an order of mandamus compelling the 3 rd Respondent to conduct criminal investigations and make a prosecutorial decision. He also decries inaction by the Regulators, who are the 1 st and 2 nd respondents herein and the police, the latter who are not parties to the petition. In this regard, I find it necessary to set out the constitutional and statutory division of functions between investigative and regulatory agencies and the Office of the Director of Public Prosecutions (ODPP).
52. Article 157 of the Constitution vests the ODPP with the power to institute and undertake criminal proceedings. This role is limited to prosecutorial powers only and does not confer investigative powers. Section 24 of the National Police Service Act , on the other hand, provides the mandate of criminal investigations, including interviewing witnesses, gathering evidence, and compiling inquiry files to the National Police Service through its Directorate of Criminal Investigations. In both cases, none of these functions is subject to the control of any person or office. The regulators on their part, the 1 st and 2 nd respondents, regulate the practice of the respective professions and set standards for the professionals in the respective professions.
53. Accordingly, while the ODPP has the constitutional authority to review evidence and decide whether to prosecute, it cannot itself initiate or conduct investigations. The proper course is for the National Police Service to carry out investigations and submit the investigations file to the ODPP, which latter then exercises its discretion under Article 157(6) to prosecute or decline prosecution.
54. Section 11 of the Architects and Quantity Surveyors Act ( AQS Ac t) provides for removal of a person registered under the Act from the Register is such person has, among other things, been found by the Board to be guilty of misconduct as is described in section 13 of the Act .
55. Under the Architects and Quantity Surveyors Act:
13. Orders to suspend registration, etc.
If any person registered under this Act is convicted of an offence under this Act, or is, after due inquiry held by the Board, found to have been guilty of any act or omission amounting to improper or disgraceful conduct in a professional respect the Board may—
(a) caution or censure such person;
(b) direct that, during such period as the Board may specify, his registration shall not have effect;
(c) impose a fine not
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