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ELCPartially AllowedConstitutional Petition (notice of motion dated October 5, 2021); related to ELC Constitution Petition No 28 of 2020 (Justus Chai Mbaru & 12 others v The County Government of Mombasa & 20 others)· [2022] KEELC 3577 (KLR)

Gele t/a Buxton Filling Station v Chief Officer Land, Housing and Physical Planning, County Government of Mombasa & 7 others (Environment & Land Petition 44 of 2010) [2022] KEELC 3577 (KLR)

Environment and Land Court
9 May 2022
8,613 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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Mombasa's Environment and Land Court halted further demolition of the Buxton Filling Station and let its owner retrieve his equipment while the main case continues.

What this practically means

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Executive summary

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This is a ruling on the petitioner's notice of motion dated October 5, 2021 in an intended constitutional petition before the Environment and Land Court at Mombasa. The petitioner, Abdullahi Ahmed Gele, operator of Buxton Filling Station on LR No Mombasa/Block/XVII/1443, sought conservatory orders restraining the 1st to 6th respondents from further demolishing, destroying or interfering with the suit property, and access to remove fuel, tanks and pumps. He alleged that county officers, accompanied by goons, fenced off and demolished his business in September 2021 without notice, fair hearing or compensation, violating article 40 of the Constitution. The respondents opposed, contending the petitioner had no prima facie case, that the claim was a private law matter, that his lease had expired in 2007 and was irregularly created over public land later consolidated into plot No Mombasa/Block/XVII/1821 leased to the 4th respondent for an urban renewal joint venture, and that the petition offended res judicata. The court framed four issues and, applying the settled principles for conservatory orders (Gatirau Peter Munya and related authorities), found the petitioner had demonstrated an arguable prima facie case, likely prejudice, enhancement of constitutional values, risk of the petition being rendered nugatory and public interest favouring preservation. However, concurring with the respondents on statutory immunity, it held the Chief Officer and the Governor, as officers of the County Government acting in good faith, could not be sued personally and struck out their names under section 133 of the County Governments Act and section 22 of the National Government Co-ordination Act, 2013. The court granted the conservatory orders and access order pending the petition, allowed the application with costs against the 1st to 6th respondents, and directed the petition to proceed by viva voce evidence and affidavits on July 29, 2022.

Key legal issues

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01

Whether conservatory orders were warranted

Holding

Yes - the petitioner demonstrated an arguable prima facie case with likelihood of success, prejudice, and public interest favouring preservation of the subject matter pending the substantive petition.

Reasoning

The court applied the settled principles for conservatory orders under article 23(3)(c), as laid down in Gatirau Peter Munya, Nubian Rights Forum and Board of Management of Uhuru Secondary School. On the material placed before it, it found the applicant had shown a prima facie case, likely prejudice from continued demolition and construction, enhancement of constitutional values, risk of the petition being rendered nugatory, and public interest supporting the orders. The court made no definitive findings of fact or law, leaving those for the full hearing.

p. 15
02

Whether the 1st and 2nd respondents could be sued personally

Holding

No - as officers of the County Government acting in good faith in execution of duty, they enjoy statutory protection against personal liability and their names were struck out.

Reasoning

The court concurred with counsel for the respondents that the Chief Officer and the Governor had been wrongly sued in their personal capacities. Relying on section 133 of the County Governments Act and section 22 of the National Government Co-ordination Act, 2013, it held they are not juridical bodies, bear no personal legal liability for acts done in good faith in execution of their offices, and that no reasonable cause of action lay against them; their names were struck out from the proceedings.

p. 16
03

Who bears the costs

Holding

The petitioner, having succeeded, is entitled to costs of the application against the 1st to 6th respondents.

Reasoning

Applying section 27 of the Civil Procedure Act and the principle that costs follow the events, the court held that since the petitioner succeeded in obtaining the conservatory orders sought, the respondents should bear the costs of the application.

p. 16

Legal principles established

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  • In an application for conservatory orders under article 23 of the Constitution, the court makes no definitive findings of fact or law; it only examines the material to determine whether a prima facie case is made out.
  • Principles for conservatory orders: arguable prima facie case with likelihood of success, prejudice if not granted, enhancement of constitutional values, substratum rendered nugatory, and public interest.
  • Under section 133 of the County Governments Act and section 22 of the National Government Co-ordination Act, 2013, public officers acting in good faith in execution of their duties bear no personal civil liability and cannot be sued in their personal capacity.

Court orders

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  1. 1.Notice of motion application dated October 5, 2021 found meritorious and allowed with costs
  2. 2.Conservatory orders restraining the 1st to 6th respondents from further demolishing, destroying, digging, constructing or in any way interfering with the suit property (Buxton Filling Station on LR No Mombasa/Block XVII/1443) pending hearing and determination of the petition
  3. 3.Order allowing the petitioner free access to the suit property to remove all the fuel, tank and pumps without interference from the 1st to 6th respondents, their officers, servants and/or agents pending the hearing and determination of the petition
  4. 4.Declaration that the 1st and 2nd respondents cannot be sued in their personal capacity as they are not juridical bodies, and their names struck out and/or expunged from the records of the proceedings forthwith
  5. 5.Petitioner to be heard by way of both viva voce evidence and affidavits on July 29, 2022
  6. 6.Costs of the notice of motion dated October 5, 2021 borne by the 1st, 2nd, 3rd, 4th, 5th and 6th respondents

Authorities

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Legislation

  • Civil Procedure Act, cap 21sections 1A, 1B, 3A, 7 and 27
  • Civil Procedure Rules, 2010Order 51 rule 1
  • Constitution of Kenya, 2010articles 22, 22(1), 23, 23(3)(c), 40, 40(1), 40(2)(b), 40(6), 43, 47, 48, 50(1), 159, 162(2), 165, 258, 259
  • Constitution of Kenya (Protection of Fundamental Rights and Freedoms Practice and Procedure) Rules, 2013rules 4, 13, 19, 23(1) & (2) and 24
  • County Governments Actsection 133
  • National Government Co-ordination Act, 2013section 22
  • Land Act, No 6 of 2012sections 12(8) & (9), 66(b), 67, 152A and 152B
  • Land Registration Act, No 3 of 2012sections 2(a) & (b) and 55
  • Registration of Business Names ActBN/2016/419007
  • Physical Planning Actpart development plan requirements
  • Energy Actsection 9
  • Public Private Partnerships Actjoint venture under urban renewal programme
  • Land Acquisition Actproprietary rights enforcement (as pleaded by petitioner)
  • National Government of Kenya - Affordable Housing Programme Framework Guidelines, 2018-

Cases cited (18)

  • Diana Kethi Kilonzo & another v the Independent Electoral and Boundaries Commission (IEBC) and 2 others
  • Hon Mr Joseph Mbalu Mutara v The Attorney General & another
    Petitioner No 337 of 2013
  • Onyango Oloo v Attorney General
    [1986-1998] EA 456
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    Supreme Court Application No 5 of 2014 [2014] eKLR
  • Nubian Rights Forum & 2 others v Attorney-General & 6 others; Child Welfare Society & 8 others (Interested Parties); Centre For Intellectual Property & Information Technology (Proposed Amicus Curiae)
    Petition No 56, 58 & 59 of 2019 [2019] eKLR
  • Platinum Distillers Limited v Kenya Revenue Authority
    [2019] eKLR
  • Centre for Rights Education and Awareness (CREAW) & another v Speaker of the National Assembly and 2 others
    [2017] eKLR
  • Simeon Kioko Kitheka & 18 others v County Government of Machakos & 2 others
    [2018] eKLR
  • Ndanabo v The Attorney General
    [2001] 2 EA 485
  • Board of Management of Uhuru Secondary School v City County Director of Education & 2 others
    [2015] eKLR
  • Joram Mwenda Guantai v Chief Magistrate, Nbi
    [2007] eKLR
  • Munyu Maina v Hiram Gathihi Maina
    Civil Appeal No 233 of 2009
  • Kalya Soi Farmers Cooperative Society v Paul Kirui & another
    [2013] eKLR
  • Pop-In Kenya Limited & 3 others v Habib Bank AG Zurich
    Civil Appeal No 80 of 1988
  • Rajwani v Rodem
    [1990] eKLR
  • Justus Chai Mbaru & 12 others v The County Government of Mombasa & 20 others
    ELC Constitution Petition No 28 of 2020
  • Kenya Chemicals and Allied Workers Union v Milly Glass Works Limited
    [2020] eKLR
  • Progress Welfare Association of Malindi and 3 others v County Government of Kilifi & 4 others
    [2020] eKLR
Jurisdiction invoked
Articles 22, 23, 40, 47, 48, 50, 159, 162(2), 165, 258 and 259 of the Constitution of Kenya; sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 rule 1 of the Civil Procedure Rules, 2010; rules 13, 19, 23(1) & (2) and 24 of the Constitution of Kenya (Protection of Fundamental Rights and Freedoms Practice and Procedure) Rules, 2013 (Mutunga 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, "Gele t/a Buxton Filling Station v Chief Officer Land, Housing and Physical Planning, County Government of Mombasa & 7 others (Environment & Land Petition 44 of 2010) [2022] KEELC 3577 (KLR)", Case Analysis (2022). Constitutional Petition (notice of motion dated October 5, 2021); related to ELC Constitution Petition No 28 of 2020 (Justus Chai Mbaru & 12 others v The County Government of Mombasa & 20 others). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3577/eng@2022-05-09

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