John Njoroge Muinami & 74 others v Kenya African National Union & 2 others [2014] KEELC 652 (KLR)
The bottom line
#Kenya's Environment and Land Court froze the sale and development of a KANU plot in Kasarani, ruling party members could fight for the land in court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over a dispute implicating a political party's assets and alleged violations of constitutional rights
The court found it has jurisdiction. Although Section 40 of the Political Parties Act vests the Political Parties Tribunal with jurisdiction over party disputes, the Plaintiffs allege violation of constitutional rights to fair administrative action and equitable access to land, and the dispute is over land, so jurisdiction lies in the ELC under Article 162(2)(b) and Section 13 of the ELC Act.
The court noted the Plaintiffs allege, inter alia, violation of Article 47 fair administrative action and equitable access to land. Bill of Rights enforcement is conferred on the High Court, and land disputes fall to the ELC by virtue of Article 162(2)(b) and Section 13 of the Environment and Land Court Act, 2012. The same reasoning disposes of the 2nd Defendant's submission that the enforcement notice could only be challenged at the Physical Planning Liaison Committee.
Whether the Plaintiffs established a prima facie case for an interlocutory injunction
Yes. The court was satisfied the Plaintiffs demonstrated membership of the 1st Defendant, and it was unclear whether the suit property had been disposed of, with no evidence of National Governing Council approvals and the KANU Foundation (the body to hold the party's immovable property in trust) yet to be constituted.
The Plaintiffs produced membership and official documents including a life membership card and party election results. The 3rd Defendant claimed to be a purchaser for value but produced no sale agreement, proof of payment or transfer instrument. The 1st Defendant did not demonstrate the required approvals from the National Governing Council under Section 27 of its constitution, and its foundation, entrusted to hold the party's land in trust, is yet to be constituted.
Whether the Plaintiffs' rights under Article 47 and equitable access to land were violated by the demolition
This question can only be determined upon trial, as what is before the court at this stage is a prayer for temporary injunction pending the outcome of the suit.
The 2nd Defendant submitted that issuance of the enforcement notice and demolitions did not breach any fundamental rights since it acted within its mandate under the Physical Planning Act. The court held that whether the Plaintiffs' rights were infringed is a matter for the trial court, not to be resolved at the interlocutory stage.
Non-disclosure of the names of 72 Plaintiffs and the request for consolidation with other suits
The Plaintiffs still have a window before the hearing to disclose the names of the other 72 Plaintiffs; consolidation can only be considered upon application and after perusing the other court files.
The Defendants objected that the identities of the 72 Plaintiffs were undisclosed and that the suit circumvented orders in ELC No. 151 of 2014. The court held both issues are technical and premature: the matter is yet to go for hearing, and consolidation requires a formal application and consideration of common questions of law or fact across the files.
Legal principles established
#- Jurisdiction to determine whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened lies in the High Court, and where the dispute is over land, in the Environment and Land Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2012
- The principles in Giella v Cassman Brown govern the grant of interlocutory injunctions: prima facie case with probability of success, irreparable injury not adequately compensable by damages, and balance of convenience where the court is in doubt
- Consolidation of suits is a matter for the court's consideration where there are common questions of law or fact, and can only be arrived at after perusing the other court files and upon an application by a party
Court orders
#- 1.The 1st Defendant by itself, servants and/or agents is restrained from alienating, disposing off, selling, transferring, mortgaging and/or in any manner dealing with Plot L.R. No. 29082 Kasarani pending the hearing and determination of the suit or further orders of this court
- 2.The 3rd Defendant is restrained from trespassing, developing, erecting structures and/or in any manner dealing with Plot L.R. No. 29082 Kasarani pending the hearing and determination of the suit or further orders of this court
- 3.Costs of the application be in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Njoroge Muinami & 74 others v Kenya African National Union & 2 others [2014] KEELC 652 (KLR)", Case Analysis (2014). ELC No. 29082 Kasarani matter (Plot No. 29082, Kasarani). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/652/eng@2014-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.