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ELCDismissedBungoma ELC Case of 28th May 2014

Rabecca Winfred Asimu Omido v Secretary the County Government of Bungoma [2017] KEELC 606 (KLR)

Environment and Land Court (High Court) at Bungoma
18 December 2017
1,411 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff sued the Secretary, County Government of Bungoma seeking a permanent injunction restraining the defendant from entering, harassing or interfering with her occupation and use of leasehold title Number Bungoma/Municipality/800. She relied on eighteen exhibits including a certificate of lease dated 2002, a letter of allotment dated 23/11/1995, development approvals, rates receipts and photographs, and testified that she was interviewed, allotted the plot, paid the stand premium by instalments and later received the lease from the Commissioner for Lands. Under cross-examination she could not produce her application, prove payment of the demanded Kshs.14,443.00, or explain discrepancies between the allotment letter and the lease: the seven-year gap before registration, the disparity in area, the different lessors named (County Council versus Municipal Council of Bungoma), the change of user from a commercial motel to residential without consent, and payment of rates only while rent on the title went unpaid. The defendant alleged the lease was irregularly and fraudulently issued over government land reserved for information, labour and administration offices, and argued that the person sued had no capacity and that the plaintiff had been allotted plot No. 20. The defendant adduced no independent evidence. The court framed one issue: whether the plaintiff proved her case to warrant an injunction. It found no proof of harassment by County Government officers, no proof of lawful allocation, and held that the Secretary, County Government of Bungoma had no legal standing to be sued. It noted there was no counterclaim for cancellation of the title. The suit was dismissed with no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiff proved her case to warrant the grant of the orders sought for an injunction against the defendant
  2. 2.Whether the plaintiff proved lawful allocation and ownership of plot Bungoma/Municipality/800
  3. 3.Whether the defendant, sued as the Secretary, County Government of Bungoma, had legal capacity to be sued
  4. 4.Whether there was evidence of harassment or interference by the defendant's officers

Key legal issues

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01

Proof of lawful allocation of the suit plot

Holding

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)

Reasoning

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.

p. 3
02

Capacity of the defendant to be sued

Holding

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

Reasoning

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.

p. 3
03

Proof of harassment/interference by the defendant

Holding

There was no evidence at all of harassment by the County Government officers, and on that score alone the suit failed

Reasoning

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.

p. 3
04

Absence of counterclaim notwithstanding doubts over the title

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Suit is dismissed with no orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 3

Costs

There shall be no orders as to costs (each party to bear their own costs).

Quotable passages

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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.
p. 3scope of the suit - no counterclaim for cancellation of 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.
p. 3failure to prove the claim of harassment
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.
p. 3legal capacity of the defendant to be sued
As there is no defendant capable of being sued there shall be no orders as to the costs. Suit is dismissed.
p. 3final orders - dismissal and no order as to costs

Issues in the judgment

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minor

The judgment inconsistently refers to plot number Bungoma/Municipality/800 and plot number 155 when describing the plaintiff's allotment

minor

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

minor

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

minor

The judgment refers to the applicant as 'he' in paragraph 10 although the plaintiff is female ('she attached on advisory plan')

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, "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.