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ELCDismissedELC Petition (Mombasa) - Notice of Motion dated 17th September 2024· [2025] KEELC 5090 (KLR)

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)

Environment and Land Court
9 July 2025
2,278 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioners, registered proprietors of plots Nos. 312 and 392/1/MN, moved the Environment and Land Court at Mombasa by notice of motion dated 17th September 2024 seeking conservatory orders of prohibition restraining the 12th to 46th respondents from further construction, subdivision or disposal of the suit properties, mandamus compelling the OCS Bamburi to enforce those orders, certification under Article 165(4) of the Constitution for referral to the Chief Justice to empanel an uneven bench, and leave for substituted service on squatters by newspaper advertisement. The 1st to 3rd and 6th respondents opposed, arguing the court was properly constituted, the petition raised nothing novel, and the petition was a device to compel compulsory acquisition of private land contrary to the Land Act. The court applied the three-factor test in Peter Gatirau Munya v Dickson Mwenda Kithinji and found the petitioners had established an arguable prima facie case with likelihood of success and public interest in a conservatory order. However, the prohibition prayer was framed only to run pending determination of the application itself, whose lifespan ended with the ruling, and there was no prayer pending the petition; the relief therefore failed on drafting. The court declined Article 165(4) certification, holding the petition a conventional ownership and possession dispute fit for one judge. Costs were awarded to the 1st to 3rd and 6th respondents, the court noting the petition concerns private property rights rather than public-interest litigation. The application was dismissed in its entirety.

Key legal issues

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01

Threshold for conservatory orders at the interlocutory stage

Holding

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.

Reasoning

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.

p. 4
02

Effect of defective drafting of the prayer for conservatory orders

Holding

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.

Reasoning

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.

p. 4
03

Certification of a substantial question of law under Article 165(4)

Holding

The petition does not raise a substantial question of law warranting empanelment of an uneven bench; it is an ordinary ownership and possession dispute.

Reasoning

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.

p. 5
04

Costs in a constitutional petition

Holding

Costs were awarded against the petitioners despite the public-interest flavour often associated with petitions, because the petition concerns private property rights.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The application dated 17th September 2024 has no merit.
  2. 2.The application is dismissed.
  3. 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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.