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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether conservatory orders were warranted
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.
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.
Whether the 1st and 2nd respondents could be sued personally
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.
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.
Who bears the costs
The petitioner, having succeeded, is entitled to costs of the application against the 1st to 6th respondents.
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.
Legal principles established
#- 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
#- 1.Notice of motion application dated October 5, 2021 found meritorious and allowed with costs
- 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.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.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.Petitioner to be heard by way of both viva voce evidence and affidavits on July 29, 2022
- 6.Costs of the notice of motion dated October 5, 2021 borne by the 1st, 2nd, 3rd, 4th, 5th and 6th respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.