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ELCOtherChuka ELC Case No. 16 of 2019· [2019] KEELC 2128 (KLR)

Chuka Igamba Ng’ombe Development Association v County Government of Tharaka Nithi [2019] KEELC 2128 (KLR)

Environment and Land Court
30 July 2019
PNP. M. NJOROGE
1,724 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Chuka court temporarily stopped the county government from interfering with a town monument, but its right to do so is still being contested.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Chuka comprises two interlocutory decisions in a suit by the Chuka Igamba Ng'ombe Development Association against the County Government of Tharaka Nithi concerning the Centenary Celebrations Monument at Chuka town. By an application dated 23rd July 2019 brought under Order 40 Rules 1 and 4(1) of the Civil Procedure Rules, Sections 3A and 63(c) of the Civil Procedure Act and Articles 22, 23, 40 and 159(2) of the Constitution, the plaintiff sought an interim injunction restraining the defendant from interfering with the monument, its development and grounds. The plaintiff, through the affidavit of Gitari Kea, contended that it initiated and erected the monument to commemorate 100 years of Chuka town, that the defendant was redesigning, defacing and disfiguring it without public participation, and that despite an undertaking at a meeting mediated by the County Commissioner, the defendant continued works at night. On 23rd July 2019, Njorege J declined to certify the matter urgent but directed a priority hearing, granted prayer 2 pending determination of the application in terms of Section 63(e) of the Civil Procedure Act owing to the impending court recess, and ordered service within two days. When the matter came up on 30th July 2019, the defendant had filed a Preliminary Objection contending that the plaintiff is an unincorporated body lacking locus standi and that the suit is fatally defective and an abuse of process. The court gave directions: 14 days each for the plaintiff's response, the defendant's submissions and the plaintiff's reply submissions, with directions on 4th September 2019. No costs order was made and the Preliminary Objection remained undetermined.

Key legal issues

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01

Interim protection of the Centenary Celebrations Monument

Holding

The court granted prayer 2, restraining interference with the monument, as an interim measure under Section 63(e) of the Civil Procedure Act pending hearing and determination of the application

Reasoning

The plaintiff alleged that the defendant, despite a mediation undertaking before the County Commissioner to cease works, continued night construction on the monument. With the court about to go on recess, the court found interim preservation warranted, invoking Section 63(e) of the Civil Procedure Act rather than disposing of the injunction application itself, and directed service and an inter partes hearing date.

p. 4
02

Locus standi of an unincorporated association

Holding

Not determined; the court gave directions for filing of responses and written submissions on the defendant's Preliminary Objection

Reasoning

The defendant raised a Preliminary Objection contending that the plaintiff is an unincorporated body without legal personality to sue in its own name, and that the deponents and annextures relate to the Chuka Centenary Celebrations Committee rather than the plaintiff association. The court did not rule on the objection at this stage but allotted timelines for a response, submissions and directions.

p. 4

Legal principles established

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  • Where a court is about to go on recess, it may grant interim preservation orders under Section 63(e) of the Civil Procedure Act pending inter partes hearing

Court orders

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  1. 1.Matter not certified urgent but to be heard on priority basis
  2. 2.Prayer 2 granted pending hearing and determination of the application in terms of Section 63(e) of the Civil Procedure Act, the court going on recess the following week
  3. 3.Plaintiff ordered to serve the application and orders within 2 days
  4. 4.Parties to come to court on 30th July 2019 for hearing of the application and/or directions
  5. 5.Plaintiff granted 14 days to respond to the Preliminary Objection
  6. 6.Defendant granted 14 days to file and serve written submissions concerning the Preliminary Objection
  7. 7.Plaintiff granted 14 days after receipt of the defendant's written submissions to file and serve written submissions
  8. 8.Parties to come to court to take directions on 4th September 2019

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 4(1)
  • Civil Procedure Act, Cap 21 Laws of KenyaSection 3A
  • Civil Procedure Act, Cap 21 Laws of KenyaSection 63(c)
  • Civil Procedure Act, Cap 21 Laws of KenyaSection 63(e)
  • Constitution of Kenya, 2010Article 22(b), (c) and (d)
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 159(2)(a), (b), (d) and (e)
Jurisdiction invoked
Articles 22, 23, 40 and 159(2) of the Constitution of Kenya, 2010; Sections 3A and 63(c) of the Civil Procedure Act (Cap. 21); Order 40 Rules 1 and 4(1) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Chuka Igamba Ng’ombe Development Association v County Government of Tharaka Nithi [2019] KEELC 2128 (KLR)", Case Analysis (2019). Chuka ELC Case No. 16 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2128/eng@2019-07-30

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