Bandari Investment Company Limited v National Police Service & others (Petition 15 of 2017) [2021] KEELC 4483 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a landowner's bid to use the Constitution to evict squatters, ruling eviction belongs in an ordinary civil suit.
What this practically means
#Executive summary
#Key legal issues
#Constitutional avoidance - whether the petition should have been an ordinary civil suit
The petition is an abuse of court process; the petitioner should have filed an ordinary civil suit for eviction and injunction
Applying the Supreme Court's statement of the avoidance principle in Communication Commission of Kenya v Royal Media Services and Uhuru Muigai Kenyatta v Nairobi Star, the court held that eviction and injunction claims are routine civil matters. The petitioner had in fact previously pursued these remedies in Mombasa CMCC No. 1686 of 2016, showing the claim did not mutate into a constitutional issue. Issues such as adverse possession raised by respondents required viva voce evidence in a civil suit, not a petition.
Whether the police breached the petitioner's rights by failing to evict without a court order
No breach; police could not evict occupants with pending cases asserting title without a court order
Following Moi Education Centre Co. Ltd v William Musembi, a court order is a prerequisite to eviction. The occupants had pending suits claiming the land, and rights such as overriding interests or prescriptive rights can only be ascertained by courts. The police acted properly by preferring criminal charges instead of evicting.
Whether the County Government discriminated against the petitioner under Article 27
No discrimination; the County Government could not demolish structures without a valid court order
The petitioner complained that it had to obtain building approvals while the 6th – 23rd respondents built without permits. The court held that given the respondents were claimed to be squatters with pending litigation, the County Government could not be expected to demolish structures without a valid court order, so no Article 27 violation was made out.
Whether the petition constitutes a proceeding under Section 152E of the Land Act
It does not; the statutory eviction procedure was not followed
Counsel for the petitioner argued the petition satisfied Section 152E eviction notice requirements. The court rejected this, holding that a constitutional petition cannot be construed as a proceeding under Section 152E, and if the petitioner wished to invoke that section nothing stopped it from doing so expressly.
Legal principles established
#- Where a party has remedies in ordinary civil law or statute, it must pursue those remedies rather than invoke the Constitution (avoidance principle)
- Police cannot evict occupants of land based solely on a proprietor's complaint; rights of occupation can only be ascertained by courts, so a court order is a prerequisite to eviction
- Eviction and permanent injunction claims are matters for ordinary civil suits commenced by plaint
- Adverse possession claims cannot be determined through a constitutional petition
Court orders
#- 1.The petition is dismissed in its entirety
- 2.Prayers (a) to (h) of the petition are disallowed/dismissed
- 3.No orders as to costs
- Jurisdiction invoked
- Constitution of Kenya, 2010 - petition alleging violation of Articles 27, 40 and 43 (Bill of Rights enforcement under Article 23)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bandari Investment Company Limited v National Police Service & others (Petition 15 of 2017) [2021] KEELC 4483 (KLR)", Case Analysis (2021). Mombasa Constitutional Petition (not stated in judgment; filed 1 December 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4483/eng@2021-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.