Rabecca Winfred Asimu Omido v Secretary the County Government of Bungoma [2017] KEELC 606 (KLR)
The bottom line
#A Kenyan landowner lost her injunction case because she couldn't prove her plot was properly allocated, that she was actually harassed, or that she sued the right party.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff proved her case to warrant the grant of the orders sought for an injunction against the defendant
- 2.Whether the plaintiff proved lawful allocation and ownership of plot Bungoma/Municipality/800
- 3.Whether the defendant, sued as the Secretary, County Government of Bungoma, had legal capacity to be sued
- 4.Whether there was evidence of harassment or interference by the defendant's officers
Key legal issues
#Proof of lawful allocation of the suit plot
The plaintiff did not prove lawful allocation; the documentary trail showed material discrepancies (no application produced, seven-year gap between allotment letter and lease registration, disparity in area and lessor, unexplained change of user from commercial to residential, and no proof of rent payment)
The court compared the letter of allotment dated 23/11/1995 with the certificate of lease issued 11/12/2002. It noted the 30-day acceptance/payment clause, the seven-year delay in registration, the disparity between the 0.11 hectares offered and the leased area, the different lessors named, the change of user from a commercial motel to residential without consent, and payment of rates only while rent remained unpaid. These unanswered questions meant allocation was not proved.
Capacity of the defendant to be sued
The person sued, the Secretary of the County Government of Bungoma, has no legal standing to be sued, so the suit fails on that ground as well
Relying on the defence submissions invoking Section 6 of the County Government Act on who may sue or be sued, the court observed from the pleadings that the named defendant was the Secretary, County Government of Bungoma, a person without legal standing. Since there was no defendant capable of being sued, no costs orders were made.
Proof of harassment/interference by the defendant
There was no evidence at all of harassment by the County Government officers, and on that score alone the suit failed
Although the claim was for a permanent injunction to restrain harassment and interference, the plaintiff concentrated her evidence on how the plot was allocated to her and adduced no evidence on how or when County Government officers harassed her. In the absence of such proof the injunction could not issue.
Absence of counterclaim notwithstanding doubts over the title
Although the court had doubts about the regularity of the title, there was no counterclaim seeking its cancellation, so the court made no order cancelling it
The court noted several irregularities surrounding the allotment but observed that the case before it was the plaintiff's claim for an injunction. The defendant filed no counterclaim asking for cancellation of the title; the court therefore confined itself to whether the plaintiff had proved her claim, which she had not, and dismissed the suit.
Legal principles established
#- A plaintiff seeking an injunction must prove both entitlement to the property and actual interference by the defendant; failure on either ground is fatal to the suit
- A suit against a party without legal capacity to be sued must fail
Court orders
#- 1.Suit is dismissed with no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- First-instance civil suit for a permanent injunction over land within Bungoma (Environment and Land Court jurisdiction); no specific constitutional or statutory basis is cited in the judgment
Relief refused
#Permanent injunction restraining the defendant from entering, harassing or interfering with the plaintiff's occupation and use of title Number Bungoma/Municipality/800
The plaintiff failed to prove lawful allocation of the plot and adduced no evidence of harassment by the defendant's officers, and the person sued had no legal standing
Costs
There shall be no orders as to costs (each party to bear their own costs).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This case is for an injunction by the Plaintiff. There is no counterclaim by the defendant asking me to cancel this title.
There was no proof at all on how and when the officer of the County Government of Bungoma harassed her. Indeed, there was no evidence at all adduced in that regard. On that score alone, this suit must fail.
On perusal of the pleadings, the person sued is the Secretary, County Government of Bungoma. A person who have no Legal standing to be sued. On that score too the suit fails as well.
As there is no defendant capable of being sued there shall be no orders as to the costs. Suit is dismissed.
Issues in the judgment
#The judgment inconsistently refers to plot number Bungoma/Municipality/800 and plot number 155 when describing the plaintiff's allotment
Inconsistent figures for the leased area - the letter of allotment is said to offer 0.11 hectares while elsewhere the lease is described as for 0.998 hectares and in cross-examination the plaintiff said the lease area was 0.0998
Inconsistent date of issue of the certificate of lease - the narrative says it was dated 11.9.2002 while cross-examination evidence says it was issued on 11th December, 2002
The judgment refers to the applicant as 'he' in paragraph 10 although the plaintiff is female ('she attached on advisory plan')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rabecca Winfred Asimu Omido v Secretary the County Government of Bungoma [2017] KEELC 606 (KLR)", Case Analysis (2017). Bungoma ELC Case of 28th May 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/606/eng@2017-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.