Bamburi Wananchi Cooperative Savings and Credit Society Limited & 26 others v Attorney General & 45 others (Environment and Land Petition E023 of 2024) [2025] KEELC 5090 (KLR)
The bottom line
#Landowners lost their request to stop squatters from building because their court application was drafted to expire the very day the judge ruled on it.
What this practically means
#Executive summary
#Key legal issues
#Threshold for conservatory orders at the interlocutory stage
The petitioners demonstrated an arguable prima facie case with likelihood of success and public interest favoured a conservatory order, since their proprietorship and the squatters' occupation were undisputed.
The court applied the three-factor test from the Munya case: prima facie case with likelihood of success, risk of the substratum being rendered nugatory, and public interest. On the pleadings and affidavits, the petitioners' registered proprietorship was undisputed, the squatters' possession was undisputed, and fears of more people moving onto the land were unrebutted, so the threshold was met on the merits.
Effect of defective drafting of the prayer for conservatory orders
The conservatory relief failed because the prayer was confined to the period pending determination of the application and no interim order had ever been issued.
Parties are bound by their pleadings. The only prayer for prohibition was for the period 'pending the hearing and determination of this application inter-parties', and no order had been issued on 20th September 2024 or thereafter. The prayer's lifespan expired with the determination of the application, and there was no alternative prayer framed pending the petition.
Certification of a substantial question of law under Article 165(4)
The petition does not raise a substantial question of law warranting empanelment of an uneven bench; it is an ordinary ownership and possession dispute.
Applying the principles requiring an issue that transcends the parties, novelty or uncertainty in law, specificity of the substantial questions, and matters falling under Article 165(3)(b) or (d), the court held the petition is primarily a land ownership dispute between the petitioners and the 12th to 46th respondents, similar to many suits the ELC handles, and thus fit for one judge.
Costs in a constitutional petition
Costs were awarded against the petitioners despite the public-interest flavour often associated with petitions, because the petition concerns private property rights.
While costs are often not awarded in public-interest constitutional litigation, this petition concerns private property rights. Having failed in the application, the petitioners were ordered to bear the costs of the 1st to 3rd and 6th respondents who defended the application.
Legal principles established
#- Conservatory orders are tested on arguable prima facie case with likelihood of success, whether the petition's substratum will be rendered nugatory, and public interest.
- A party is bound by its pleadings and the court can only grant the prayers as sought; an interim prayer limited to determination of the application cannot be converted into one pending the petition.
- Ordinary land ownership and possession disputes do not raise substantial questions of law warranting certification under Article 165(4).
Court orders
#- 1.The application dated 17th September 2024 has no merit.
- 2.The application is dismissed.
- 3.The petitioners to bear the costs for respondents who defended the application.
- Jurisdiction invoked
- Article 165(4) of the Constitution of Kenya (certification question); Article 162(2) ELC original jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Bamburi Wananchi Cooperative Savings and Credit Society Limited & 26 others v Attorney General & 45 others (Environment and Land Petition E023 of 2024) [2025] KEELC 5090 (KLR)", Case Analysis (2025). ELC Petition (Mombasa) - Notice of Motion dated 17th September 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5090/eng@2025-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.