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ELCPartially AllowedEnvironment & Land Case E007 of 2023· [2023] KEELC 20643 (KLR)

Temba & another v Governer Bungoma County Government & 3 others

Environment and Land Court
5 October 2023
1,903 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 ruled you don't need a title deed to sue for trespass—occupation is enough—but county officials can't be sued personally.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Bungoma (E.C. Cherono, J) determines preliminary objections dated June 13 and June 20, 2023 in a trespass suit. The plaintiffs, Khamala Kizito Temba and Bernardet Temba, allege that the 4th defendant, acting under the authority of the county government defendants, trespassed on land parcel Ndivisi/Makuselwa/1552 and demolished fences and trees; they seek declarations of constitutional violation, an injunction, damages and costs. The defendants objected that the plaintiffs lack locus standi because the title is registered in the name of Maurice Temba Kisabuli, deceased, and that the 1st and 3rd defendants (the Governor and the Chief Officer, Roads and Infrastructure) are not legal entities capable of being sued in their personal capacity. The court applied the Mukisa Biscuit definition of a preliminary objection and held that a claim of lack of locus standi is a pure point of law. However, relying on section 10 of the Trespass Act and Winfield and Jolowicz on tort, it held that occupation suffices for a trespass suit, and found the plaintiffs have locus standi notwithstanding the absence of a grant. On joinder, the court held that under section 133 of the County Government Act, read with Articles 176 and 179 of the Constitution, the Governor and Chief Officer are protected from personal civil liability for acts done in execution of their duties; the suit against them was struck out with costs to them. The suit continues against the remaining defendants.

Key legal issues

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01

Whether lack of locus standi is a proper preliminary objection

Holding

Yes - a claim that a party lacks locus standi is a pure point of law that may be raised preliminarily.

Reasoning

Applying Mukisa Biscuit, a preliminary objection must be a pure point of law capable of disposing of the suit. Locus standi, defined as the right to bring an action or be heard in a given forum, raises a pure point of law and may be raised at the earliest opportunity.

p. 3
02

Whether the plaintiffs, who hold no grant of representation, have locus standi to sue for trespass

Holding

Yes - occupation of the suit land suffices for a trespass suit under section 10 of the Trespass Act.

Reasoning

It was not in contention that the plaintiffs occupy the land and have erected structures thereon. Section 10 of the Trespass Act allows proceedings to be instituted by the occupier of private land, and Winfield and Jolowicz confirm that possession in fact supports trespass. The suit seeks an injunction for trespass, not ownership.

p. 4
03

Whether the Governor and Chief Officer, Roads and Infrastructure are properly sued in their personal capacity

Holding

No - they are members and staff of the county government protected by section 133 of the County Government Act, and the suit against them is improperly brought.

Reasoning

The plaintiffs admitted seeking no personal liability and sued the officers for acts done in execution of their offices. Under section 133 of the County Government Act and Articles 176 and 179 of the Constitution, the Governor and Chief Officer are members/staff of the county government entitled to exemption from personal civil liability for acts done in good faith.

p. 4

Legal principles established

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  • A party need not be the registered proprietor to sue for trespass; occupation of the land is sufficient locus standi.
  • Members, staff and servants of a county government are exempted from personal civil liability for acts done in good faith in execution of their duty under section 133 of the County Government Act.

Court orders

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  1. 1.The suit against the 1st and 3rd defendants is struck out
  2. 2.Costs of the preliminary objection to the 1st and 3rd defendants

Authorities

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Legislation

  • County Government Actsections 5, 6, 123, 133
  • Law of Succession Actsection 82
  • Trespass Actsection 10
  • Constitution of Kenya, 2010Articles 176, 179

Cases cited (9)

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    (1969) EA 696

    Definition of a preliminary objection as a pure point of law

  • Quick Enterprises Ltd v Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999

    A preliminary objection should be capable of disposing of the suit

  • Alfred Njau v City Council of Nairobi
    (1982) KAR 229 / (1983) KLR 625

    Meaning of locus standi - right to appear or be heard in proceedings

  • John Minning Temoi & another vs. Governor of Bungoma County & 17 others
    (2014)

    Cited by defendants on suing county government officers

  • Julian Adoyo Ongonga v Francis Kiberenge Abano
    Migori Civil Appeal No. 119 of 2015

    Cited by defendants

  • Fredrick Wachira Ndegwa (substituting Ndegwa Wachira (deceased) v Ridharada Wanjiku Ndanjeru & another
    (1997) eKLR

    Cited by defendants on suits concerning deceased persons' property

  • James Gacheru Kariuki & 69 others v William Kabogo Gitau & 104 others

    Cited by plaintiffs

  • Samuel Mwangi v Jeremiah M'itobu
    [2012] eKLR

    Confirmation that occupation suffices for trespass suit

  • Lilian Mosonik & another v Management Committee of AGC Riverside Church
    (2022) eKLR

    Cited by plaintiffs

Jurisdiction invoked
Article 162(2)(b) of the Constitution - Environment and Land Court (implied by court's mandate over land/trespass disputes)

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, "Temba & another v Governer Bungoma County Government & 3 others", Case Analysis (2023). Environment & Land Case E007 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20643/eng@2023-10-05

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