Temba & another v Governer Bungoma County Government & 3 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether lack of locus standi is a proper preliminary objection
Yes - a claim that a party lacks locus standi is a pure point of law that may be raised preliminarily.
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.
Whether the plaintiffs, who hold no grant of representation, have locus standi to sue for trespass
Yes - occupation of the suit land suffices for a trespass suit under section 10 of the Trespass Act.
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.
Whether the Governor and Chief Officer, Roads and Infrastructure are properly sued in their personal capacity
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.
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.
Legal principles established
#- 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
#- 1.The suit against the 1st and 3rd defendants is struck out
- 2.Costs of the preliminary objection to the 1st and 3rd defendants
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution - Environment and Land Court (implied by court's mandate over land/trespass disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.