Lawrence Ogaro Onyiego & another v Samwel Minika & another [2017] KEELC 3576 (KLR)

The court aligned itself with the three-judge bench in Council of Governors -v- Senate, which endorsed Majanja J's finding that mandatory notice under Section 13A violates Article 48 on access to justice. Independently, the Act was never amended post-devolution: Section 12 and Section 13 route suits and service through the Attorney General, who under Article 156(4) represents only the National Government. Applying the Act as is to County Governments would produce absurdity.

Following Obaga J in James Muigai Thugu -v- County Government of Trans Nzoia, the court reasoned that County Governments are bodies corporate with power to sue and be sued, that no provision of the County Governments Act protects them from injunctions, and that the Government Proceedings Act, tailored to a single monolithic government, cannot wholesale apply to counties without modification.

Although the 1st plaintiff's registration was demonstrated, the photographs (JM01) and survey abstract (JM04) did not show that the road works were on parcel 4306; the court could not presume so. On irreparable harm, the plaintiffs themselves pleaded general damages for destruction of property, showing damages were feasible. Both Giella limbs failed.

Order 1 rule 9 provides that no suit shall be defeated by misjoinder or non-joinder. The court preferred to sustain the suit so it is determined on its merits, cautioning that if the plaintiffs fail at trial the claim will be dismissed with costs to the 1st defendant.