Patel Brotherhood v County Government of Nakuru [2018] KEELC 4777 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that unincorporated societies can sue to protect constitutional rights, and blocked Nakuru County's wall that cut off land access.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petitioner, an unincorporated society registered under the Societies Act, has capacity (locus standi) to institute a constitutional petition in its own name
- 2.Whether the respondent's decision and process of erecting a wall blocking the petitioner's only access to its property violated Articles 40, 42 and 47 of the Constitution
Key legal issues
#Whether an unincorporated society has capacity to sue in a constitutional petition
The preliminary objection failed; under Articles 22 and 258 and the Mutunga Rules, 'person' includes an unincorporated body, and access to justice must not be restricted by technicalities
The court held that Article 22(2)(d) permits an association acting in the interest of its members to institute proceedings, and the Practice and Procedure Rules define 'person' to include an association or body of persons whether incorporated or unincorporated. Article 259 requires purposive interpretation, which applies to locus standi. The authorities relied on by the respondent were pre-2010 decisions in plaint-based suits and were distinguishable.
Whether the respondent's construction of the wall violated Articles 40, 42 and 47
Yes - the petitioner's and its members' rights to property, a clean and healthy environment and fair administrative action were threatened, violated and infringed
The respondent offered no evidence, so the facts stood undisputed: the petitioner is the registered proprietor, the wall would block the only access, and the petitioner was never informed. The court held access is a right of a registered proprietor under Article 40, and that the respondent had a duty to accord a hearing before making the decision under Article 47, which it failed to do.
Legal principles established
#- For a preliminary objection to succeed it must raise a pure point of law, be argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained or judicial discretion exercised
- In Bill of Rights enforcement proceedings, the Constitution deliberately widens access to court, and 'person' includes unincorporated bodies; locus standi cannot be curtailed by technicalities
- Rights of a registered proprietor of land include the right of access; blocking access violates property and environmental rights, and affected persons must be heard before adverse administrative action
Court orders
#- 1.A declaration that the decision and process of erecting a wall by the respondent blocking access to Land Parcel Number Nakuru Municipality Block 10/340 is unconstitutional, null and void
- 2.An order directing the respondent, its agents, servants and/or employees to forthwith stop the ongoing construction of the wall blocking access to Land Parcel Number Nakuru Municipality Block 10/340
- 3.Costs of the petition awarded to the petitioner
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23, 40, 42 and 47 of the Constitution of Kenya, 2010 (enforcement of Bill of Rights)
Relief refused
#A declaration that the respondent's actions contravened Articles 2(1), 3(1), 10, 27, 40, 42, 43(1)(e), 47, 69(1)(d) and 73 of the Constitution
The court entered judgment only in respect of Articles 40, 42 and 47; no finding was made on the other articles
Costs
Costs of this petition are awarded to the petitioner.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is thus clear that the constitution deliberately intends to widen access to court and to justice for those seeking protection of Rights and Fundamental Freedoms as opposed to restricting it.
Firstly, it should raise a pure point of law; secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
The authorities of HCCC No. 190 of 2006 (Nairobi) Living Water Church International –vs- City Council of Nairobi and HCCC 629 of 2005 (Milimani) Beth Wanjiru Kamau –vs- Savings and Loan (K) Ltd, cited by the respondent are distinguishable since they are decisions that were made prior to the promulgation of the Constitution of Kenya 2010 and in suits that were commenced by way of plaints.
A declaration is hereby made that the decision and process of erecting a wall by the respondent blocking access to Land Parcel Number Nakuru Municipality Block 10/340 flies in the face of Articles 40,42 and 47 of the Constitution of Kenya, 2010 hence unconstitutional, null and void.
An order is hereby issued directing the respondent, its agents, servants and/or employees or otherwise howsoever to forthwith stop the ongoing construction of the wall blocking access to Land Parcel Number Nakuru Municipality Block 10/340.
Costs of this petition are awarded to the petitioner.
Issues in the judgment
#Sentence in the judgment appears truncated mid-finding: 'To the extent that the wall would block the petitioner’s members’ access to the suit property, I find that' - the finding is not completed in the text, though completed in the next paragraph
Judgment text renders 'Article 58' where context and constitutional scheme suggest Article 258 on enforcement of the Bill of Rights
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patel Brotherhood v County Government of Nakuru [2018] KEELC 4777 (KLR)", Case Analysis (2018). Petition dated 5th April 2017 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4777/eng@2018-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.