Mbindi v County Executive Committee Member for Lands, Urban/Physical Planning, Housing & Municipalities County Government of Bungoma & 2 others (Environment and Land Constitutional Petition E002 of 2024) [2024] KEELC 4466 (KLR)
The bottom line
#A Bungoma court blocked Bungoma County from demolishing a hotel building for six months, ruling that disputes over who rightfully owns land belong in the Environment and Land Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition met the specificity (Anarita Karimi Njeru) requirement
The petition satisfied the requirement as it identified the constitutional provisions infringed, particularly Article 40, and explained the manner of infringement; technical transgressions not causing prejudice should not defeat a claim.
The court, adopting Olao J in the Martin Wanyonyi case, held that the Anarita Njeru and Mumo Matemu tests do not impose a hard rule mandating dismissal for imperfect pleadings. Article 159(2)(d) and Article 22(3)(b) require minimal formalities. On perusal, the petition identified Article 40 (right to property) as infringed by threatened demolition, so the petition was worth sustaining.
Whether the ELC has jurisdiction given the exhaustion argument under Section 72(3) of the Physical and Land Use Planning Act
The preliminary objection failed; the petition predominantly contests the legality of acquisition of title, not land use planning, so the ELC has jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act.
The court held that although the dispute was triggered by a development control/enforcement notice, the petition rests on the assertion of registered ownership and threatened demolition. The respondents' own pleadings put the mode of acquisition of title at the centre. That dispute falls squarely within the ELC's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act, which also empowers it to grant interim preservation orders. The objection also failed as a true preliminary objection because it depended on disputed facts.
Whether the petitioners established a case for conservatory and injunctive orders
Yes. The petitioners established a prima facie case with probability of success, greater hardship, and the balance of convenience favoured them; conservatory orders issued for six months.
Applying Gatirau Peter Munya, Wambora and the Giella principles, the court found the petitioner registered as 4th proprietor with documents tracing the root of title, issues requiring trial and cross-examination. Fraud allegations must be strictly proved. Demolition before trial would render the petition nugatory. Hardship and balance of convenience tilted toward the petitioner in possession.
Legal principles established
#- A preliminary objection deals with a pure point of law assumed from the pleadings and cannot be raised where facts must be ascertained or judicial discretion exercised.
- A court without jurisdiction acts in nullity; the Environment and Land Court has jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act over disputes on the legality of acquisition of title to land.
- Allegations of fraud must be strictly proved to a standard higher than a balance of probabilities but below the criminal standard.
- Where a petition on ownership and threatened demolition of land is before the ELC, conservatory orders preserving the property may issue pending full hearing since disputed title issues require trial and cross-examination.
Court orders
#- 1.A conservatory order in the nature of an injunction issued for a period of six (6) months prohibiting and restraining the Respondents jointly and severally, their agents, employees, officers and/or any person acting on their behalf from demolishing or in any way interfering with the Petitioners' use and occupation of the building erected on Land Parcel no. E.bukusu/n. Kanduyi/4632 pending the hearing and determination of the petition.
- 2.Costs of the application shall be in the cause.
- Jurisdiction invoked
- Article 23 of the Constitution read with 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, "Mbindi v County Executive Committee Member for Lands, Urban/Physical Planning, Housing & Municipalities County Government of Bungoma & 2 others (Environment and Land Constitutional Petition E002 of 2024) [2024] KEELC 4466 (KLR)", Case Analysis (2024). ELC Petition (Bungoma) - Notice of Motion dated 6th February, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4466/eng@2024-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.