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ELCOtherPetition dated 8th July 2024 (Bungoma ELC Petition)· [2025] KEELC 5420 (KLR)

Obiero v County Government of Bungoma & 3 others (Environment and Land Petition E005 of 2024) [2025] KEELC 5420 (KLR)

Environment and Land Court
17 July 2025
ECE.C. Cherono
2,936 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Bungoma confirmed you cannot sue county government officers by title when the county government itself is already a party.

What this practically means

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Executive summary

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The Petitioner, Douglas Nashon Obiero, petitioned the Environment and Land Court at Bungoma alleging violation of his right to property through encroachment, trespass and damage to land known as E.Bukusu/Sing'alo/3XX4 during the expansion of the Mactolo/Tonisio Road. He sought declarations of violation and illegality, a permanent injunction, restoration of a drainage culvert, compensatory, aggravated and exemplary damages, and loss of rental earnings. The 1st to 4th Respondents filed grounds of opposition and a preliminary objection contending that the 2nd, 3rd and 4th Respondents are not legal persons capable of being sued, that they act on behalf of the County Government of Bungoma, and that section 133 of the County Governments Act shields them from personal liability. The parties agreed the objection would be heard first. Applying the Mukisa Biscuits definition of a preliminary objection, and relying on Article 179 of the Constitution, sections 6 and 133 of the County Governments Act, and the decisions in John Mining Temoi and John Rimui Waweru, the court held that the 2nd, 3rd and 4th Respondents are legal phantoms, being sued for acts done in execution of their offices on behalf of the County Government of Bungoma, a body corporate already joined as the 1st Respondent. Their inclusion was irregular. The objection was upheld and the 2nd, 3rd and 4th Respondents were struck out with costs in the cause. The Petition, as against the remaining Respondents, was not determined and the substantive claims remain for hearing.

Key legal issues

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01

Definition and scope of a preliminary objection

Holding

The court adopted the Mukisa Biscuits definition of a preliminary objection as a point of law which, if argued as a preliminary point, may dispose of the suit.

Reasoning

The court turned to Black's Law Dictionary and the classic Mukisa Biscuits formulation, holding that a preliminary objection consists of a point of law pleaded or arising clearly from the pleadings which may dispose of the suit. The objection on improper joinder of non-existent legal entities qualified as such a point of law.

p. 4
02

Whether the 2nd, 3rd and 4th Respondents are properly joined parties

Holding

They are legal phantoms - neither natural persons nor corporate entities - and were irregularly joined because the County Government of Bungoma, the proper legal entity, is already a party.

Reasoning

Relying on Article 179 of the Constitution, sections 6 and 133 of the County Government Act, and the Temoi and Waweru decisions, the court held that officers sued for acts done in execution of their offices cannot be enjoined where the county government itself is a party, as it is a body corporate capable of suing and being sued. Their inclusion was irregular and they were struck out.

p. 6

Legal principles established

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  • A county government is a body corporate with perpetual succession capable of suing and being sued in its own name, and its officers cannot be sued on its behalf for acts done in execution of their offices.
  • Section 133 of the County Government Act exempts county government officers from personal liability for acts done in good faith in discharge of their mandate.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 28th February 2025 is upheld
  2. 2.The 2nd, 3rd and 4th Respondents are struck out of the Petition
  3. 3.Costs of the objection to be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27(1), 40, 47, 50, 176, 179, 20(1), 21(1)
  • County Governments Act, 2012Sections 6, 57, 123, 133
  • Land Registration Act No. 3 of 2012(maintenance of boundaries)

Cases cited (10)

  • John Mining Temoi & Another v Governor of Bungoma County & 17 Others
    [2014] eKLR
  • John Rimui Waweru & 3 Others v Githunguri Constituency Ranching Co. Ltd & 5 Others
    [2015] KLR / [2015] eKLR
  • Attorney General & Another v Andrew Mwaura Githinji & Another
    [2016] KLR
  • Republic Ex-parte the Minister for Finance & the Commissioner of Insurance v Charles Lutta Kasamani T/A Kasamani & Co. Advocates & Another
    Civil Appeal (Application) No. Nai. 281 of 2005 [UR]
  • Consolata Kihara & 21 Others v The Director of Kenya Trypanosomiasis Research Institute Nairobi
    [2003] KLR 582
  • Oraro v Mbaja
    [2005] 1 KLR 141
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] E.A 696
  • Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others
    [2014] KLR
  • David Nyekorach Matsanga & Another v Philip Waki & 3 Others
    [2017] eKLR
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others
    [2015] eKLR
Jurisdiction invoked
Article 40 and Articles 27, 47 and 50 of the Constitution of Kenya 2010 (property, fair administrative action and fair hearing rights pleaded as the basis of the Petition)

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, "Obiero v County Government of Bungoma & 3 others (Environment and Land Petition E005 of 2024) [2025] KEELC 5420 (KLR)", Case Analysis (2025). Petition dated 8th July 2024 (Bungoma ELC Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5420/eng@2025-07-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.