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ELCDismissedMombasa Constitutional Petition (not stated in judgment; filed 1 December 2017)· [2021] KEELC 4483 (KLR)

Bandari Investment Company Limited v National Police Service & others (Petition 15 of 2017) [2021] KEELC 4483 (KLR)

Environment and Land Court of Kenya
28 January 2021
7,384 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Bandari Investment Co. Limited, registered proprietor of approximately 59.6 acres at Nguu Tatu, Mombasa, petitioned the National Police Service, the Regional Coordinator Coast Province, the Attorney General, the County Government of Mombasa, its contractor Oriole Investment Limited, and 18 individuals alleged to have violently invaded the land in 2016 as squatter groups. The petitioner alleged breaches of Articles 27, 40 and 43, seeking declarations, mandamus directing the authorities to demolish structures and evict the occupants, a permanent injunction, and costs. It relied on prior eviction orders in Mombasa CMCC No. 1686 of 2016, later quashed for want of pecuniary jurisdiction, and on the Land Act's eviction provisions. The 6th – 23rd respondents opposed, contending that trespass, forcible entry and possible adverse possession raise no constitutional issues, and pointing to multiple pending suits and criminal prosecutions. Applying the constitutional avoidance principle (Communication Commission of Kenya v Royal Media Services; Uhuru Muigai Kenyatta v Nairobi Star), the ELC held that eviction and injunction claims belong in ordinary civil suits by plaint; the petitioner had already pursued that route and had not explained why the claim mutated into a constitutional one. The court further held, applying Moi Education Centre v Musembi, that the police could not be faulted for refusing to evict occupants with pending title claims without a court order, and that the County Government could not demolish structures without such an order, negating the discrimination claim. The petition was dismissed in its entirety, all prayers disallowed, with no orders as to costs.

Key legal issues

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01

Constitutional avoidance - whether the petition should have been an ordinary civil suit

Holding

The petition is an abuse of court process; the petitioner should have filed an ordinary civil suit for eviction and injunction

Reasoning

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.

p. 10
02

Whether the police breached the petitioner's rights by failing to evict without a court order

Holding

No breach; police could not evict occupants with pending cases asserting title without a court order

Reasoning

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.

p. 11
03

Whether the County Government discriminated against the petitioner under Article 27

Holding

No discrimination; the County Government could not demolish structures without a valid court order

Reasoning

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.

p. 11
04

Whether the petition constitutes a proceeding under Section 152E of the Land Act

Holding

It does not; the statutory eviction procedure was not followed

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.The petition is dismissed in its entirety
  2. 2.Prayers (a) to (h) of the petition are disallowed/dismissed
  3. 3.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23(3)(a)(b)(c), 27, 40, 43, 238
  • Land Act, 2012Section 7(d), Sections 152A, 152B, 152E
  • Land Registration Act, 2012Section 36
  • Limitation of Actions Act, Cap 22Section 7
  • Land Laws (Amendment) Act, 2016Sections 152A, 152B, 152E
  • National Police Act, Act No. 11A of 2011Section 24
  • Architects and Quantity Surveyor's Act, Cap 525Sections 7, 8 and 9
  • Local Government Building By-Laws 1986 (The Building Code)-
  • National Construction Authority Act, No. 41 of 2011-
  • National Construction Authority Regulations, 2014-
  • Physical Planning Act, Cap 286-
  • Survey Act, Cap 299-
  • Environmental Management and Coordination Act, Cap 387-
  • Public Health Act, Cap 242-
  • Trespass Act-
  • Penal Code-

Cases cited (8)

  • Communication Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others
    (2014) eKLR
  • Uhuru Muigai Kenyatta vs Nairobi Star
    (2013) eKLR
  • NM & Others vs Smith and Others (Freedom of Expression Institute as Amicus Curiae)
    200 (5) S.A. 250 (CC)
  • Minister of Home Affairs vs Bickle & Others
    (1985) L.R.C. Cost. 755
  • S v. Mhlungu
    1995 (3) SA 867 (CC)
  • Ashwander v. Tennessee Valley Authority
    297 U.S. 288, 347 (1936)
  • Wahid Munwar Khan vs. The State
    AIR (1956) Hyd. 22
  • Moi Education Centre Co. Ltd vs William Musembi & 16 Others
    (2017) eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 - petition alleging violation of Articles 27, 40 and 43 (Bill of Rights enforcement under Article 23)

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, "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.