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ELCPartially AllowedNotice of Motion dated June 24, 2022 (suit re LR No Bunyala/Bulemia/3470)· [2023] KEELC 480 (KLR)

Wandera v County Government of Busia (Environment & Land Case E011 of 2022) [2023] KEELC 480 (KLR)

Environment and Land Court
1 February 2023
BOBoaz N. Olao
2,063 words in judgment
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The bottom line

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A Busia court confirmed Kenyans can get injunctions against county governments over private land, but only temporary orders before full trial.

What this practically means

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Executive summary

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The plaintiff, Nicolas Bwire Wandera, moved the Environment and Land Court at Busia by Notice of Motion dated June 24, 2022 under Article 40 of the Constitution, Section 63 of the Civil Procedure Act and Order 40 Rules 1 and 2 of the Civil Procedure Rules, seeking a temporary injunction restraining the County Government of Busia and persons acting under its authority from dealing with or constructing on sub-divided plots on LR No Bunyala/Bulemia/3470 adjacent to Bulemia Market, demolition of structures already built, and police supervision of compliance. The plaintiff asserted ownership of land inherited from his late father, alleging the county demarcated, sub-divided and allocated part of it in early 2022, blocking his access road. The defendant opposed, asserting the land is public land held in trust for the public, that photographs were blurred, that Section 16(1) of the Government Proceedings Act and Order 29 Rule 2(2) bar injunctions against government, and that the application departed from the pleadings. Olao J first held that no statutory bar prevents injunctions against a county government, and that temporary orders are sought in applications, not plaints. Applying Giella v Cassman Brown, the court found a prima facie case: the search certificate showed private registered proprietors and the defendant produced no evidence of public land. Damages were not shown to be adequate, and continued construction would change the property's nature. The court granted the temporary injunction but declined the demolition and police supervision prayers as final relief unavailable interlocutorily, awarded costs in the cause, and directed the plaintiff to ensure the suit is heard within 12 months failing which the order lapses.

Key legal issues

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01

Injunctions against county governments

Holding

Section 16 of the Government Proceedings Act and Order 29 Rule 2 CPR do not bar injunctive relief against a county government

Reasoning

The court accepted counsel's submission that the County Government Act 2012 contains no provision prohibiting the court from granting injunctive relief against a county government, adopting the decisions in Lawrence Onyiego and James Muigai Thungu.

p. 3
02

Pleading of temporary injunctions

Holding

Temporary orders are sought in an application, not in a plaint; the plaint pleads only permanent final orders

Reasoning

The plaint at paragraph 18(c) sought a permanent injunction, so an interlocutory application for a temporary injunction was consistent with, not a departure from, the pleadings.

p. 3
03

Prima facie case and adequacy of damages

Holding

The plaintiff demonstrated a prima facie case over registered private land, and the injury from continued construction could not adequately be compensated in damages

Reasoning

The search certificate showed private ownership; the defendant produced no evidence the land was public land, only an unsubstantiated assertion. The defendant cited no facts or law showing damages would be adequate, and continued construction would change the nature of the property.

p. 4

Legal principles established

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  • The Government Proceedings Act bar on injunctions against government does not extend to county governments
  • It is not an inexorable rule that a temporary injunction will not be granted where damages may be an appropriate remedy
  • Those who brazenly infringe on the title of others must be restrained by injunctions

Court orders

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  1. 1.Pending the hearing and determination of the suit, a temporary injunction restraining the defendant, its agents, proxies, allottees and persons acting under its authority from constructing, building, dealing with or conducting business on the sub-divided plots on LR No Bunyala/Bulemia/3470 adjacent to Bulemia Market
  2. 2.Prayers No. 4, 5 and 6 (demolition of structures, police supervision) declined
  3. 3.Costs in the cause
  4. 4.Suit to be heard and determined within 12 months failing which the order lapses unless extended for sufficient reasons

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Civil Procedure ActSection 63
  • Civil Procedure RulesOrder 40 Rules 1 and 2; Order 29 Rule 2(2)
  • Government Proceedings ActSection 16(1)
  • County Government Act 2012not specified

Cases cited (8)

  • Giella -v- Cassman Brown & Co Ltd
    1973 EA 358
  • Mrao -v- First American Bank Of Kenya Ltd & Othrs
    2003 KLR 125
  • Nguruman Ltd -v- Jan Bonde Nielsen & Others
    CA Civil Appeal No 77 of 2012
  • Lawrence Onyiego & Another -v- Samwel Minika & Another
    2017 eKLR
  • James Muigai Thungu -v- County Government Of Trans Nzoi
    2017 eKLR
  • Films Rover International -v- Cannon Film Sale Ltd
    1986 3 ALL ER 772
  • Waithaka -v- ICDC
    2001 KLR 374
  • Thomas Smith Aikman & Another -v- Muchoki & Others
    1982 eKLR [CA Civil Appeal No 9 of 1982]
Jurisdiction invoked
Article 40 of the Constitution; Section 63 of the Civil Procedure Act; Order 40 Rules 1 and 2 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, "Wandera v County Government of Busia (Environment & Land Case E011 of 2022) [2023] KEELC 480 (KLR)", Case Analysis (2023). Notice of Motion dated June 24, 2022 (suit re LR No Bunyala/Bulemia/3470). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/480/eng@2023-02-01

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