State loses battle for 15,000-acre Taita Taveta land

The Environment and Land Court has nullified a tender by the national government to lease the 15,000-acre Bachuma Livestock Quarantine Station in Taita Taveta County, declaring the process unconstitutional and a violation of devolved functions.

Justice Edward Wamboto ruled that the tender process initiated by the Ministry of Agriculture and Livestock Development to lease the Bachuma station encroached upon functions reserved for the county government and was therefore “null and void.”

“The invitation by the Ministry of Agriculture and Livestock Development for Tender No. MOALD/SDA/BLQS/IT/01/2024/2025 contravenes Articles 60, 62, 186, 187, and the Fourth Schedule of the Constitution and is thus unconstitutional,” Justice Wamboto held in his judgment.

The decision centred on Tender No. MOALD/SDA/BLQS/IT/01/2024/2025, which sought bids for a 30-year lease of the Bachuma Livestock Quarantine Station, also known as the Bachuma LMD Farm, for the management, development, and maintenance of the facility for livestock screening and shipment.

The Taita Taveta County Government, through Maingi Musyimi Advocates, had argued that the tender process by the national government was unconstitutional and a blatant usurpation of devolved authority.

“The county was neither consulted nor involved in the decision to lease the Bachuma Farm,” argued counsel Maingi Musyimi. “The actions of the Ministry threaten the spirit of devolution and directly contravene Article 10 on public participation and Article 174 on the objects of devolution.”

The county government also told the court that it currently utilizes a section of the land for livestock breeding and employment of local residents, and that leasing it to private investors would deny the local community access to critical grazing and agricultural resources.

On its part, the national government, represented by Ms. Mwanaszumba, defended the tender as lawful and necessary.

She told the court that the Bachuma station is a strategic facility for the National Veterinary Department and critical for international livestock trade, certification, and disease control.

She maintained that the tender was conducted transparently under the Public Procurement and Asset Disposal Act (2015) and that public participation is not mandatory at the procurement stage.

The State further argued that the county’s objection was “an afterthought motivated by politics rather than legal principle.”

However, Justice Wamboto dismissed the national government’s defence, noting that the Constitution places livestock production and animal husbandry under the purview of county governments.

“The national government only bears a ‘policy’ function, which for all intents and purposes is implemented by the county governments,” he stated, citing the Supreme Court’s decision in the Institute for Social Accountability case.

He emphasized that the national government had failed to uphold constitutional principles of consultation and cooperation between the two levels of government, and that bypassing the county amounted to a violation of Articles 10, 174, 186, and 187 of the Constitution, as well as Section 87 of the County Governments Act (2012).

“The respondents acted in disregard of the principles of public participation and intergovernmental cooperation, thereby undermining the foundation of devolution,” the judge ruled.

While the court allowed most of the prayers sought by the county, it declined to issue an order compelling the unconditional transfer of the land to the county government, noting that there was no evidence the National Land Commission had been formally engaged on the matter.

In the final orders, Justice Wamboto issued a declaration that the tender process was unconstitutional.

The judge also issued an order of inhibition restraining the Ministry of Agriculture from implementing, awarding, or actualizing the tender, and an order of certiorari quashing the entire tender process.