Public participation can be easy to describe and surprisingly difficult to prove. A county may advertise a meeting, invite residents and produce an attendance list. A challenger may still say the exercise was cosmetic. Gakuru v Governor Kiambu County remains important because it shifts attention away from the mere existence of a meeting and toward the quality of the opportunity the public actually received.

For county finance laws, that question is especially important. A finance measure can change licence fees, market charges, business permits and other costs that affect everyday livelihoods. The Constitution gives counties real fiscal powers, but those powers operate within substantive limits and within a participatory system of devolved government. Gakuru therefore asks two separate questions: did the county have legal power to impose the particular charge, and did it make the law through a constitutionally adequate process?

What happened in Kiambu

Gakuru & others v Governor Kiambu County & 3 others, [2014] KEHC 7516 (KLR), concerned the Kiambu County Finance Act 2013. Residents, businesses and institutions challenged the Act on grounds that included inadequate public participation and unlawful fiscal measures.

The county relied on public notices and a meeting at the Windsor Hotel. It also argued that citizens were already represented by elected members of the County Assembly. The High Court, through Justice George Vincent Odunga, rejected the idea that representative democracy displaced direct public participation. It found the participation efforts inadequate in the circumstances and declared the Finance Act null and void.

The Court of Appeal later affirmed the core result in Kiambu County Government & 3 others v Gakuru & others [2017] KECA 459 (KLR). That appellate decision matters when the case is cited today because it gives binding appellate support to the central proposition that public participation in county law-making must be meaningful and reasonable in context.

Participation is an opportunity, not a head count

Gakuru did not create a rule that every resident must attend a hearing or personally approve a Bill. The constitutional duty is to facilitate a reasonable opportunity for participation. What is reasonable depends on the nature and importance of the measure, the people likely to be affected, the time available and the communication methods that are realistically accessible.

In the Kiambu dispute, the Court was troubled by methods that were unlikely to reach many ordinary residents, particularly people who were poor, rural, illiterate or otherwise excluded from formal urban processes. Justice Odunga referred to tools such as public barazas, places of worship and vernacular or national radio as examples of channels that might be appropriate. The point was not to impose a rigid checklist. It was to require government to think seriously about how information actually reaches the population it claims to be consulting.

The Court of Appeal expressed the same idea in a more structured way. Public participation involves dissemination of information, an invitation to participate and consultation on the legislation. That sequence is useful in practice because it gives a court something concrete to examine. A person cannot meaningfully comment on a proposal that was not made reasonably intelligible or available in time.

The current statutory framework reinforces Gakuru

The Constitution places participation of the people among the national values in Article 10, makes public participation part of the objects of devolution in Article 174, requires county assemblies to facilitate public participation in Article 196 and applies openness and accountability to public finance through Article 201.

The County Governments Act adds operational detail. Section 87 requires timely access to relevant information and reasonable access to processes for formulating policies, laws, regulations and budgets, with attention to minorities and marginalised groups. The Act’s wider participation provisions make clear that citizen involvement is not an optional courtesy by county government.

The Public Finance Management Act also embeds participation in the county budget process. The legal framework therefore treats participation as part of how public money is raised and spent, not as a ceremonial event added after the real fiscal choices have already been made.

Public participation and taxing power are different questions

One of the most useful lessons from Gakuru is that procedural participation cannot create a tax power the Constitution has not granted. Article 209 identifies the taxes counties may impose and allows charges for services, subject to constitutional limits. A county therefore has to justify both the source of power and the way the measure was enacted.

This distinction helps courts avoid vague arguments. A person who says only that a levy is “unfair” has not yet identified whether the problem is excessive amount, lack of statutory authority, double taxation, discrimination, absence of a service relationship or defective participation. Different objections require different evidence and legal tests.

For a county, the same distinction matters defensively. A perfect participation process will not save a charge that falls outside county competence. Conversely, a lawful power to impose a fee does not excuse a process that shut affected people out of the law-making stage.

What later cases show

Later Kenyan decisions have continued to use the reasonableness and evidence-based approach to participation. Courts reviewing county finance legislation in 2025 examined whether affected people received adequate information and a realistic opportunity to engage, while also considering whether the challenged fiscal provisions fell within lawful county power. The outcomes have depended on the record rather than on a presumption that every allegation of poor consultation must succeed.

That is consistent with the Supreme Court’s later framework in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others [2019] KESC 15 (KLR). The Supreme Court explained that public participation is a real and enforceable constitutional obligation, but its adequacy is contextual. Written submissions may be enough in one process; oral hearings may be necessary in another. The authority must facilitate participation, but it does not have to obtain unanimous agreement.

Read together, Gakuru and British American Tobacco reject two extremes. Government cannot reduce participation to a box-ticking event. At the same time, a law is not invalid simply because every resident did not attend or because the final decision did not adopt a particular participant’s proposal.

Building a participation record before court

For a county government or assembly, the strongest defence is created during the legislative process. The record should make it possible for a later reader to identify what draft was circulated, when it was made available, how it was explained, who was invited, which channels were used, what time was allowed, what submissions were received and whether major changes were introduced after consultation.

If a Bill is rejected and later returns in materially different form, Gakuru is a warning against assuming the earlier engagement automatically covers the new measure. The more substantial the change, especially where new financial burdens appear, the stronger the case for renewed or targeted participation.

For a challenger, evidence should be equally specific. It is more useful to show that the published draft omitted the contested charge, that notice reached the public only shortly before the hearing, that a venue or language excluded an affected group, or that the enacted text materially changed after consultation than simply to say, “there was no public participation.” Courts decide records, not slogans.

Why Gakuru still matters

Gakuru remains a practical guide to democratic administration in devolved government. It does not turn citizens into a second legislature. It requires the legislature to give citizens a meaningful opening before the decision is closed.

For ordinary residents and businesses, that is the value of the case. A county finance law is not legitimate merely because it raises needed revenue. The county must show that the Constitution authorised the fiscal measure and that the people affected had a reasonable chance to understand and respond to it. Participation is therefore not decoration around county power. It is one of the conditions that make that power constitutionally accountable.

Source note

This article is based on Gakuru & others v Governor Kiambu County & 3 others [2014] KEHC 7516 (KLR), Kiambu County Government & 3 others v Gakuru & others [2017] KECA 459 (KLR), the Constitution of Kenya 2010, the County Governments Act, the Public Finance Management Act, British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others [2019] KESC 15 (KLR), and recent Kenya Law decisions reviewing county finance legislation and public participation.

Suggested citation:

Ronald Serwanga, “County Finance Law: Gakuru and Public Participation” East Africa Legal Insight (7 September 2026).