Namianya & 2 others v CECM Lands, Urban Planning, Housing and Municipalities - Bungoma County & 5 others (Constitutional Petition E003 of 2024) [2024] KEELC 3440 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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
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.
Whether the Petitioners met the threshold for conservatory and injunctive orders
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
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.
Legal principles established
#- 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
#- 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.Costs of the application shall be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.