The Environment and Land Court in Bungoma has nullified a Sh5 billion affordable housing project at Kanduyi Airstrip, declaring the tender process and contract unconstitutional and ordering the land restored to its original state within 45 days.
Justice Kossy Bor ruled that the project, valued at Sh5.02 billion, was unlawfully initiated on public land reserved for aviation purposes without a lawful change of user, meaningful public participation or the required environmental impact assessment.
In a judgment delivered virtually on October 8, 2026, the court found that the State Department for Housing and other government agencies violated constitutional provisions on public participation, environmental protection and the management of public land.
The dispute arose from three petitions challenging the proposed development, which comprises 2,034 housing units.
The court established that the land, registered as Bungoma Township/345, was reserved for aviation purposes as Kanduyi Airstrip and could not lawfully be used for another purpose without following the prescribed procedures for changing its designated use.
Justice Bor also faulted the government for conducting public participation months after awarding the contract to Shyam General Merchants Limited.
The contract was signed on September 12, 2025, while the public participation exercise took place on January 14, 2026, by which time the project had reportedly commenced.
The judge held that public participation must precede a binding decision and cannot be conducted retrospectively to legitimise an unlawful process.
“Public participation is a condition precedent to a binding decision and cannot be undertaken after the event to legitimize an unlawful process,” ruled the court.
The court further found that the respondents had failed to demonstrate compliance with environmental regulations requiring a full environmental impact assessment for the high-risk development.
It also faulted the authorities for failing to demonstrate that the land had been lawfully converted from public land reserved for aviation into land for housing development.
The National Land Commission was criticised for failing to show that the land had been planned, surveyed, serviced and allocated in accordance with the law, while no evidence was presented to establish that the Kenya Airports Authority had lawfully surrendered or transferred the property.
“When one considers the elaborate responsibilities enumerated above, which the Constitution and the Land Act bestow on NLC and NLC’s casual response to the petitioners’ claims, it lends credence to the fact that NLC did not do that which the law required it to do in the management and allocation of the suit land for the Kanduyi (Smart City) affordable housing project,” said Justice Bor.
Justice Bor further questioned the rationale for establishing a smart city on the airstrip land, ruling that another affordable housing project was already underway in Musiloma Ward, within Kanduyi Constituency.
The court said that the smart city concept did not adequately address the housing needs of the wider Bungoma population, noting that access to clean water, electricity, sanitation and affordable construction materials could be more pressing priorities for residents.
In its final orders, the court permanently restrained the respondents from using, rezoning, developing, leasing or transferring the land for purposes inconsistent with its designated use.
The Kenya Airports Authority and the National Land Commission were also directed to establish within 14 days whether seven additional parcels of land form part of the airstrip, with the court’s orders applying to them if they are found to be part of the reserve.
The court further directed the respondents to undertake an environmental planning and land-use audit within 45 days and ordered the National Land Commission to secure, protect and manage the airstrip land.
The respondents were prohibited from approving, licensing, funding or facilitating further development on the property without a lawful change of user, meaningful public participation and consideration of ecological and sustainable development requirements.
The petitioners were awarded the costs of the consolidated cases.
However, the court declined to find the respondents in contempt of court over allegations that construction had continued despite conservatory orders, ruling that no evidence had been presented to demonstrate that construction proceeded after the orders were issued.
“An order of mandamus is issued to compel the National Land Commission to secure, protect and manage the Kanduyi Airstrip land in accordance with the constitution and relevant land laws,” ruled the court.
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