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ELCPartially AllowedELC Petition (Bungoma) - Notice of Motion dated 6th February, 2024· [2024] KEELC 4466 (KLR)

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)

Environment and Land Court
23 May 2024
6,982 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Bungoma (E.C Cherono, ELC Judge) determined the petitioner's Notice of Motion dated 6th February 2024 seeking a conservatory order restraining the respondents, led by the County Government of Bungoma, from demolishing a two-storey commercial hotel building on Land Parcel E.Bukusu/N.Kanduyi/4632 pursuant to a public notice published on 31st January 2024. The petitioner claimed to be the registered 4th proprietor of the suit property. The respondents opposed through a preliminary objection, grounds of opposition and a replying affidavit, arguing the petition lacked constitutional precision, that the court lacked jurisdiction since Section 72(3) of the Physical and Land Use Planning Act required an appeal to the County Physical and Land Use Planning Liaison Committee, that the suit was sub judice before another ELC petition, that certain respondents were improperly joined, and that no prima facie case was established because the land was public utility land (part of Masinde Muliro Stadium) and the title was fraudulently obtained. The court identified three issues and held that the petition met the Anarita Karimi Njeru specificity test given Article 159(2)(d) and Article 22(3)(b); that the dispute, centred on the legality of acquisition of title, fell within the ELC's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act, defeating the preliminary objection; and that the petitioner had established a prima facie case with probability of success, greater hardship and balance of convenience in his favour, with fraud allegations requiring strict proof at trial. The application was allowed: a six-month conservatory injunction issued and costs were made costs in the cause.

Key legal issues

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01

Whether the petition met the specificity (Anarita Karimi Njeru) requirement

Holding

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.

Reasoning

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.

p. 8
02

Whether the ELC has jurisdiction given the exhaustion argument under Section 72(3) of the Physical and Land Use Planning Act

Holding

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.

Reasoning

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.

p. 10
03

Whether the petitioners established a case for conservatory and injunctive orders

Holding

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.

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application shall be in the cause.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 40, 47, 50, 159(2), 162(2)(b), 174, 176, 6, 179(1), 183(1), 184, 61, 62, Fourth and Fifth Schedules
  • Physical and Land Use Planning Act, Cap 303Sections 56, 72(1), (3), (4), 73(2) & (4)
  • 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, 13(7)
  • Civil Procedure Act, Cap 21Sections 6, 27
  • Registered Land Act, Cap 300 (repealed)Section 31
  • Registration of Titles Act (repealed)Section 23
  • Land Registration Act, 2012Section 26
  • Environmental Management and Coordination Act, 1999 (Amended 2015)null

Cases cited (27)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Giella vs. Cassman Brown and Co Ltd
    [1973] EA 358
  • Simon Gatutu Kimamo & 547 others vs. East African Portland Cement
    (2011) eKLR, Machakos High Court Petition No.333 of 2011
  • Moya Farm Drift vs. Theuri
    (1973) EA 114
  • 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
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    [2020] 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
  • Dina Management Limited v County Government of Mombasa & 5 others
    (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023)
  • Kamau Mucuha v Ripples Ltd
    [1993] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    Civil Appeal No 239 of 2009 [2013] eKLR
  • Chemey Investment Limited v Attorney General & 2 others
    [2018] eKLR
  • Abu Chiaba Mohamed v Mohamed Bwana Bakari & 2 others
    [2005] 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
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

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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, "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.