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ELCAllowedCase No 376 of 2015· [2017] KEELC 3567 (KLR)

Nyandoche Ibere Co-operative Society v County Government of Kisii & another [2017] KEELC 3567 (KLR)

Environment and Land Court
17 February 2017
JMJ. M. Mutungi
3,033 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed you can get an injunction against a County Government occupying your land, provided you hold registered title and meet the normal injunction tests.

What this practically means

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Executive summary

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The plaintiff Co-operative Society, registered owner of freehold title Wanjare/Bomorenda/1230 since 20th December 2007, moved by Notice of Motion dated 6th August 2015 under Order 40 Rules 1 and 2A, Order 51 Rule 1 and sections 1A and 3A of the Civil Procedure Act seeking an injunction to restrain the 1st and 2nd defendants from trespassing on or developing the suit land pending trial. The 1st defendant, through its Director of Planning, countered that it was building Bonyaoro Polytechnic on land allegedly surrendered by the plaintiff's members for public utility, vesting in the County Government under the Constitution and the Land Act, 2012. The plaintiff denied any surrender. The 1st defendant also filed a preliminary objection invoking sections 13A and 16 of the Government Proceedings Act, the Co-operative Societies Act, and lack of authorising resolution. The court dismissed the objection, holding that section 13A is an unconstitutional impediment to access to justice (following Kenya Bus Service and Council of Governors) and in any event does not apply to County Governments since the Attorney General represents only the National Government under Article 156(4). It further held that section 16(2) is not an absolute bar to injunctions against County Governments, which are body corporate capable of being restrained. On the merits, the plaintiff's title and official search established a prima facie case under sections 24, 25 and 26 of the Land Registration Act, while the 1st defendant produced no evidence of any surrender. The court granted an injunction in terms of prayer (3) and awarded costs of the application to the plaintiff.

Key legal issues

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01

Applicability of section 13A of the Government Proceedings Act to County Governments

Holding

Section 13A does not apply to County Governments; the objection fails.

Reasoning

Following Majanja J in Kenya Bus Service and the three-judge bench in Council of Governors, the court held that strict application of s.13A would impede access to justice under Article 48. Further, Article 156(4) confines the Attorney General to representing the National Government, so notices under ss.13 and 13A cannot properly be served on him in proceedings against a County Government.

p. 4
02

Whether section 16(2) of the Government Proceedings Act bars an injunction against a County Government

Holding

It is not a complete bar; injunctions may issue against County Governments where the ordinary conditions are satisfied.

Reasoning

The court noted divergent authorities (Kibuchi; Thugu) and held that the Government Proceedings Act was never amended to apply expressly to County Governments after devolution. Even if applicable, it should be applied with modifications; whether an injunction lies should depend on the merits, facts and circumstances of each case.

p. 5
03

Whether the plaintiff established a prima facie case for an interlocutory injunction

Holding

Yes; the plaintiff holds registered title and the defendants produced no evidence of any surrender or acquired interest.

Reasoning

The plaintiff's title and official search showed registered ownership without encumbrances, and photographs showed ongoing construction. The 1st defendant asserted a surrender for public utility but did not attach the handing-over document or any instrument, survey plan or title evidencing acquisition. The disputed issue of surrender is reserved for trial, and the property must be preserved in the interim.

p. 5
04

Sustainability of the remaining preliminary objection grounds

Holding

They are not pure points of law and are dismissed.

Reasoning

Grounds on the plaintiff's registration under the Co-operative Societies Act and lack of authorising resolution would require evidence, available only at trial, and so do not meet the Mukisa Biscuit definition of a preliminary objection.

p. 5

Legal principles established

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  • Section 13A of the Government Proceedings Act does not apply to County Governments; the Attorney General cannot represent them and it would impede access to justice.
  • Section 16(2) of the Government Proceedings Act is not a complete bar to injunctions against County Governments.
  • Registration under the Land Registration Act vests protected rights of ownership.

Court orders

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  1. 1.Injunction granted in terms of prayer (3) of the plaintiff's Notice of Motion dated 6th August 2015, restraining the 1st and 2nd defendants from trespassing on or interfering with title No. Wanjare/Bomorenda/1230 pending hearing and determination of the suit
  2. 2.Preliminary objection by the 1st defendant dismissed
  3. 3.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 3A
  • Civil Procedure RulesOrder 40 Rules 1, 2A(1) and (2); Order 51 Rule 1
  • Constitution of Kenya, 2010Articles 3, 27, 48, 156(4), 159
  • Government Proceedings Act, Cap 40sections 12(1), 13, 13A(1), 16(2), 21
  • Co-operative Societies Act No. 12 of 1997 (as amended in 2004)section 11
  • Land Registration Act, 2012sections 24, 25, 26
  • Land Act, 2012not specified
  • County Government Act, 2012not specified

Cases cited (6)

  • Kenya Bus Service Ltd & Another –vs- Minister for Transport & 2 Others
    [2012] eKLR
  • Council of Governors & 3 Others –vs- Senate & 53 Others
    [2015] eKLR
  • Josephat Gathee Kibuchi –vs- Kirinyanga County Council
    [2015] eKLR
  • James Muigai Thugu –vs- County Government of Trans-Nzoia & 2 Others
    [2015] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd
    [1969] E.A 696
  • Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
Jurisdiction invoked
Order 40 Rules 1 and 2A(1) and (2), Order 51 Rule 1, sections 1A and 3A of the Civil Procedure Act, and Articles 3 and 159 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nyandoche Ibere Co-operative Society v County Government of Kisii & another [2017] KEELC 3567 (KLR)", Case Analysis (2017). Case No 376 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3567/eng@2017-02-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.