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ELCPartially AllowedPetitioners' Notice of Motion dated 9th February 2024 (constitutional petition, Bungoma)· [2024] KEELC 3440 (KLR)

Namianya & 2 others v CECM Lands, Urban Planning, Housing and Municipalities - Bungoma County & 5 others (Constitutional Petition E003 of 2024) [2024] KEELC 3440 (KLR)

Environment and Land Court
25 April 2024
6,730 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Bungoma's Environment and Land Court protected landowners from demolition for six months, confirming land title disputes belong in the ELC, not county appeals.

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, ELC Judge, 25 April 2024) determined the Petitioners' Notice of Motion dated 9 February 2024 seeking conservatory and injunctive orders to restrain the Respondents from demolishing or interfering with the properties KANDUYI/20 and PLOT NO.12A pursuant to a public notice dated 31 January 2024. The 1st, 2nd, 3rd and 6th Respondents opposed through a notice of preliminary objection, grounds of opposition and a replying affidavit. They argued the petition lacked the specificity required by Anarita Karimi Njeru, that the court lacked jurisdiction because section 72(3) of the Physical and Land Use Planning Act requires an aggrieved party to appeal first to the County Physical and Land Use Planning Liaison Committee, that certain Respondents were improperly joined under section 133 of the County Governments Act, and that the Petitioners had no prima facie case because the suit land is public land reserved for Masinde Muliro Stadium and their titles were fraudulently acquired. The court dismissed the preliminary objection, holding that the dispute essentially concerns the legality of title to land, vested in the ELC under Article 162(2)(b) and section 13 of the ELC Act, and that the petition pleaded the constitutional violations with sufficient precision. On the interlocutory thresholds, the court found a prima facie case, irreparable hardship not compensable in damages, and balance of convenience favouring the Petitioners, noting the Respondents' fraud allegations required strict proof at full trial. The court issued a conservatory order for six months only, restraining the Respondents from interfering with the suit properties pending determination of the petition, and ordered costs of the application to be in the cause. The Petitioners did not file submissions; the Respondents did.

Key legal issues

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Whether the preliminary objection on lack of jurisdiction (exhaustion under section 72(3) of the Physical and Land Use Planning Act) and pleading specificity had merit

Holding

The preliminary objection failed; the dispute is essentially about the legality of title to land and is within the ELC's jurisdiction under Article 162(2)(b), and the petition pleaded the constitutional provisions with sufficient precision

Reasoning

The court held the petition, though triggered by the enforcement notice, predominantly rests on the Petitioners' assertion of registered ownership of the suit property, making it a land dispute vested in the ELC under Article 162(2)(b) and Section 13 of the ELC Act, which also empowers interim preservation orders. On specificity, the petition cited constitutional provisions and explained the violations, satisfying Anarita Karimi Njeru; procedural technicalities under Article 159(2)(d) should not defeat the claim absent prejudice.

p. 10
02

Whether the Petitioners met the threshold for conservatory and injunctive orders

Holding

Yes; a prima facie case was demonstrated, damages would not adequately compensate, balance of convenience favoured the Petitioners, and the order was granted for six months pending trial

Reasoning

The court found the Petitioners had shown a prima facie case with arguable grounds fit for full trial, had made extensive developments on the land from which they derive their livelihood, and would suffer hardship not compensable in damages. The balance of convenience favoured the Petitioners in possession, and failure to preserve the property would render the petition nugatory. Fraud allegations by the Respondents required strict proof at full trial, so they could not be resolved at this interlocutory stage.

p. 12

Legal principles established

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  • A preliminary objection deals only with pure points of law on undisputed facts; where facts are contested, the issue falls outside a preliminary objection
  • A constitutional petition need not be struck out for want of Anarita Karimi Njeru precision where the transgression does not prejudice the opposing party
  • Allegations of fraud must be strictly proved to a standard higher than a balance of probabilities

Court orders

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  1. 1.A conservatory order in the nature of an injunction for a period of six (6) months only restraining the Respondents jointly and severally, their agents, employees, officers and/or any person acting on their behalf from trespassing on, vandalizing, demolishing and generally interfering with the Petitioners' ownership, rights, use and occupation of the properties known as KANDUYI/20, PLOT NO.12A pursuant to the public notice dated 31st January 2024, pending the hearing and determination of the petition
  2. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 40, 159(2)(d), 162(2)(b), 174, 176, 6, 179(1), 183(1), 184, 61, 62; Fourth and Fifth Schedules
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 23 and 24
  • Physical and Land Use Planning Act, Cap 303Sections 56, 72(1), 72(3) & (4), 73(2) & (4); Preamble
  • County Governments Act, 2012Sections 36, 103, 133; Part XI
  • Urban Areas and Cities Act, Cap 275Section 12(1)
  • Environment and Land Court Act, No. 19 of 2011Sections 13 and 13(7)
  • Registered Land Act, Cap 300 (repealed)Section 31
  • Environmental Management and Coordination Act, 1999 (Amended 2015)not specified
  • Civil Procedure Act, Cap 21Section 27 (proviso)

Cases cited (26)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Susan Wanjiku Maina v Director, Physical and Land Use Planning Kiambu County Government & another
    [2022] eKLR
  • Ngomo Multi-Purpose Co-operative Society Ltd v County Government of Mombasa
    [2021] eKLR
  • John Mining Temoi & another v Governor of Bungoma County & 17 others
    [2014] eKLR
  • John Rimui Waweru & 3 others v Githunguri Constituency Ranching Co Limited & 5 others
    [2015] eKLR
  • Khamala Kizito Temba & another v the Governor Bungoma County Government & others
    ELC Case No. 007 of 2023 at Bungoma (unreported)
  • Nkunja v Magistrates and Judges Vetting Board & another
    (Petition 154 of 2016)[2016] KEHC 7269 (KLR)
  • Centre for Rights Education and Awareness (CREAW) & another v Speaker of the National Assembly & 2 others
    [2017] eKLR
  • Muslims for Human Rights (MUHURI) & 2 others v Attorney General & 2 others
    [2011] eKLR
  • Josephine Kerubo Nyasimi (Suing as legal representative of the estate of Teresia Moraa Mogendi (Deceased) v Julius Nyamwaka Mogendi & 2 others
    [2015] eKLR
  • B. V. Attorney General
    [2004] 1 KLR 431
  • Dina Management Limited v County Government of Mombasa & 5 others
    (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR)
  • Kamau Mucuha v Ripples Ltd
    [1993] eKLR
  • Chemey Investment Limited v Attorney General & 2 others
    [2018] eKLR
  • Anarita Njeru vs. Republic No.1
    (1979) I KLR
  • Martin Wanyonyi (C.E.O Centre for Human Rights Organization) & another v County Government of Bungoma & 2 others
    [2019] eKLR
  • Phoenix of E.A. Assurance Co. Limited vs. S. M. Thiga t/a Newspaper Service
    [2019] eKLR
  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors ltd
    [1969] EA 696
  • Lemitei Ole Koros & another v Attorney General & 3 others
    [2016] eKLR
  • Oraro vs Mbaja
    [2005] KLR 141
  • Martin Nyaga Wambora v Speaker of the County Assembly of Embu and 3 others
    (2014) KLR
  • Kinyanjui Kamau vs George Kamau
    (2015) eKLR
  • Ndolo vs Ndolo
    (2008) 1 KLR (G & F) 742
  • RG Patel vs Lalji Makanji
    (1957) EA 314
  • Mrao v First American Bank of Kenya Limited & 2 Others
    [2003] eKLR
  • Hussein Janmohammed & Sons vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Articles 22, 23 and 162(2)(b) of the Constitution of Kenya, 2010; Section 13 of the Environment and Land Court Act, No. 19 of 2011

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, "Namianya & 2 others v CECM Lands, Urban Planning, Housing and Municipalities - Bungoma County & 5 others (Constitutional Petition E003 of 2024) [2024] KEELC 3440 (KLR)", Case Analysis (2024). Petitioners' Notice of Motion dated 9th February 2024 (constitutional petition, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3440/eng@2024-04-25

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