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ELCPartially AllowedConstitutional Petition No E001 of 2024· [2024] KEELC 3549 (KLR)

Patrick John Kimingich Wangamati & another v County Government of Bungoma & others

Environment and Land Court
25 April 2024
10,130 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioners, Patrick John Kimingich Wangamati and Wangamati Estates Limited, moved the Environment and Land Court at Bungoma by a Notice of Motion dated 1st February 2024 seeking conservatory and injunctive orders restraining the Respondents from trespassing on, vandalising or demolishing their property known as Bungoma/Kanduyi/1 (Wangamati Estates Limited) pursuant to a public notice dated 31st January 2024 published in the Standard Newspaper by the County Government of Bungoma targeting illegal developments around Masinde Muliro Stadium, Kanduyi. The 1st, 2nd, 3rd and 6th Respondents opposed by a preliminary objection, grounds of opposition and a replying affidavit sworn by the CECM for Lands, Arch Douglas Sasita Wekesa, contending inter alia that the petition lacked precision, that section 72(3) of the Physical and Land Use Planning Act required the Petitioners to first appeal to the County Physical and Land Use Planning Liaison Committee, that the 1st, 2nd and 3rd Respondents are not legal entities capable of being sued, and that the suit property is a non-existent parcel fraudulently excised from public land reserved as a public football ground. The court framed three issues: the preliminary objection, whether conservatory orders were merited, and costs. It rejected the precision objection, holding the petition sufficiently identified Article 40 violations. It held that the dispute is essentially about the legality of title, vested in the ELC under Article 162(2)(b), and that contested fraud allegations cannot be resolved on a preliminary objection. Applying Munya and Wambora, the court found arguable grounds, irreparable hardship not compensable in damages, and balance of convenience favouring the Petitioners. The court allowed the application, issuing a six-month conservatory order pending hearing of the Petition, with costs of the application to abide the event.

Key legal issues

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01

Whether the petition is defective for lack of precision in pleading constitutional provisions (Anarita Karimi Njeru test)

Holding

The objection fails; the petition identified Article 40 and explained the alleged infringement, so it is worth sustaining.

Reasoning

The court adopted the view that the Anarita Karimi Njeru and Mumo Matemu precision guidelines are not a hard rule mandating dismissal; transgressions that do not prejudice the opposing party should not defeat a claim given Article 159(2)(d) and Article 22(3)(b). On perusal, the petition quoted the constitutional provisions allegedly violated in part D and explained the violations in part C, centring on the right to property under Article 40.

p. 13
02

Whether the ELC has jurisdiction given the exhaustion requirement in section 72(3) of the Physical and Land Use Planning Act

Holding

The preliminary objection on jurisdiction fails because the dispute is essentially about the legality of title to land, vested in the ELC.

Reasoning

The court held that although triggered by an enforcement notice, the petition predominantly rests on the assertion of registered ownership of the suit property and its protection from demolition - a title question, not land use planning. Jurisdiction over title disputes lies with the ELC under Article 162(2)(b) and section 13 of the ELC Act, which also empowers it to grant interim preservation orders including injunctions. The preliminary objection therefore failed for lack of merit.

p. 15
03

Whether the Petitioners established a case for conservatory and injunctive orders

Holding

Yes; arguable grounds, irreparable harm not compensable by damages, and balance of convenience favouring the Petitioners justified a six-month conservatory order.

Reasoning

Applying Munya and Wambora, the court found arguable grounds warranting trial, noting the Petitioners' involvement with the land since 1969 and issuance of title documents at various stages, including registration in the name of the defunct Bungoma County Council, requiring scrutiny at full hearing. The Respondents' fraud allegations must be strictly proved. Extensive developments and loan facilities secured on the property meant demolition before trial would cause hardship not compensable in damages, and the balance of convenience favoured the Petitioners in possession.

Legal principles established

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  • A preliminary objection deals with a pure point of law on undisputed facts; where facts are contested the objection fails.
  • Disputes on the legality of title to land fall within the exclusive jurisdiction of the Environment and Land Court under Article 162(2)(b), notwithstanding an enforcement notice issued under the Physical and Land Use Planning Act.
  • Allegations of fraud must be pleaded and 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 restraining the Respondents jointly & severally, their agents, employees, officers and/or any person acting on their behalf from trespassing on, vandalising, demolishing and generally interfering with the Petitioners' ownership, rights, use and occupation of the property known as Bungoma/Kanduyi/1 referred to as Wangamati Estates Limited pursuant to the Public Notice dated 31st January, 2024 pending hearing and determination of the Petition.
  2. 2.Costs of the application shall abide the event.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40, Article 40(6), Article 43, Article 23, Article 162(2)(b), Article 159(2)(d), Article 22(3)(b), Article 62(2), Fourth Schedule Part 2(8), Section 2 of the Sixth Schedule
  • Physical and Land Use Planning Act, Cap 303Section 72(1), (2), (3), (4)
  • Environment and Land Court Act, No. 19 of 2011Section 13, Section 13(7)
  • County Government Act, 2012Section 133, Section 103
  • Evidence Act, Cap 80Section 106B
  • Civil Procedure Act, Cap 21Section 27 (proviso)
  • Environmental Management and Coordination Act 1999 (Amended 2015)cited in the impugned notice
  • Urban Areas and Cities Act 2011cited in the impugned notice

Cases cited (30)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    (2014) KLR
  • Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & another
    [2016] eKLR; (Petition 154 of 2016) [2016] KEHC 7269 (KLR)
  • Samuel Asiago Kiari v Directorate of Criminal Investigations & 2 others
  • Centre for Rights Education and Awareness (CREAW) & another v Speaker of the National Assembly & 2 others
    [2017] eKLR
  • Kiscoba Association (acting through John Maina - Chairman James Ndiba - Organizing Secretary v Nairobi City County Government
    [2018] eKLR
  • Serah Njeri Mwobi v John Kimani Njoroge
    (2013) eKLR
  • Re Winding up of Nature Green Holdings Limited
    [2019] 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)
  • Solomon v Solomon & Co. Ltd
    [1897] AC 22
  • 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 Karimi Njeru v Republic (No.1)
    [1979] KLR 154
  • 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
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2011; Article 23 (read with Article 162(2)) for enforcement of Bill of Rights

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, "Patrick John Kimingich Wangamati & another v County Government of Bungoma & others", Case Analysis (2024). Constitutional Petition No E001 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3549/eng@2024-04-25

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