Margaret Nasimiyu Wesonga & others v County Government of Bungoma & others
The bottom line
#Bungoma landowners facing demolition for a stadium project won a temporary six-month court protection while their title dispute is fully heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition lacked precision under the Anarita Njeru test
The Petition satisfied the specificity requirement as it identified the constitutional provisions allegedly violated and the manner of infringement; the preliminary objection on drafting failed
The court adopted Anarita Njeru but held, following Martin Wanyonyi, that transgressions not causing prejudice should not defeat a claim given Articles 159(2)(d) and 22(3)(b). Part D of the petition cited the provisions violated and Part C explained the injury; the right to property under Article 40 was clearly engaged, so the Petition was worth sustaining.
Whether the court lacks jurisdiction by virtue of the exhaustion requirement in Section 72(3) of the Physical and Land Use Planning Act
The preliminary objection failed; the dispute is essentially about ownership and legality of title, within the ELC's jurisdiction, not a pure land-use enforcement appeal
The court examined Section 72 but held the Petitioners sought protection of alleged title and structures against demolition, engaging Article 23 and Article 162(2)(b). The Respondents' own pleadings placed the mode of acquisition of title at the centre, bringing the dispute within Section 13 of the ELC Act. The objection also involved contested facts, unsuitable for a preliminary objection.
Whether conservatory and injunctive orders should issue
Yes, limited to six months; the Petitioners established an arguable case, irreparable hardship, and balance of convenience in their favour
The court avoided deciding merits but found weighty issues requiring full hearing with cross-examination on the veracity of the titles. Fraud allegations by the Respondents required strict proof. Demolition of the Petitioners' livelihood-bearing developments would cause hardship not compensable in damages, and possession tilted the balance of convenience. Preservation orders were necessary to avoid rendering the petition nugatory.
Costs of the application
Costs to abide the event since the petition remains pending
Although costs normally follow the event under the proviso to Section 27 of the Civil Procedure Act, the court considered that the substantive petition was still pending hearing and determination and therefore deferred the costs question to the final outcome.
Legal principles established
#- A preliminary objection deals with a pure point of law on uncontested facts; where facts are contested, the matter must proceed to full hearing
- Where title and fraud are in issue, the Environment and Land Court has jurisdiction under Article 162(2)(b) despite an enforcement notice under the Physical and Land Use Planning Act
- Allegations of fraud must be strictly proved to a standard higher than a mere balance of probabilities
Court orders
#- 1.A conservatory order in the nature of an injunction issued for a period of six (6) months only restraining the Respondents from trespassing on, vandalizing, demolishing and generally interfering with the Petitioners' ownership, rights, use and occupation of the listed suit properties pursuant to the Public Notice dated 31st January, 2024, pending hearing and determination of the petition
- 2.Costs of the application shall abide the event
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and 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, "Margaret Nasimiyu Wesonga & others v County Government of Bungoma & others", Case Analysis (2024). Not stated in extract (Petition with Notice of Motion dated 6th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3978/eng@2024-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.