[2015] KEELC 497 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENTAL AND LAND COURT AT NAIROBI

ELC SUIT NO. 163OF 2014

JOHN RIMUI WAWERU..………..……………………..…1ST PLAINTIFF

JOSEPH NDUNG’U KAMAU ……….…..................…2ND PLAINTIFF

JOSEPH KINYANJUI MUTHONI…….….................…3RD PLAINTIFF

FAMILY SHADE LTD ……….…..................………….4TH PLAINTIFF

VERSUS

GITHUNGURI CONSTITUENCY

RANCHING CO. LIMITED........................……………….1ST DEFENDANT

WORLD BANK(KENYA OFFICE)…...…………………...2ND DEFENDANT

ATHI RIVER WATER SERVICES BOARD………………3RD DEFENDANT

SINO HYDRO COMPANY……….....……………………….4TH DEFENDANT

GOVERNOR, KIAMBU COUNTY……...………………….5TH DEFENDANT

RULING

Introduction

This suit was filed on 18th February 2014 by way of a Plaint dated 14th February 2014. The Plaintiffs claim that they are the owners of the various suit properties herein, being Residential Plots P179, P473, C54, and land parcels Ruiru /Kiu Block 2 (Githunguri) 4343, 2516, 2427, and 2263 all situated within Ruiru in Kiambu County.

They contend that the 4th Defendant having been commissioned by the 2nd, 3rd and 5th Defendants commenced sewerage construction on the said suit properties in 2013, and the said Defendants are thereby guilty of trespass and illegal acquisition of the Plaintiffs’ land. The Plaintiffs sought judgment for the Defendants to deliver vacant possession of the suit properties, to stop construction of the said sewerage, and for mesne profits. Further, that the OCS Ruiru do supervise the eviction of the Defendants.

The 5th Defendant thereupon filed a Notice of Preliminary Objection dated 4th March 2014 seeking that the suit against him be dismissed with costs on the following grounds:

a) That executive power and authority under section 6 of the County Government Act (No 17 of 2012) is vested in the County Government itself which is a body corporate and not in the Governor of Kiambu County as an individual.

b) That section 133 of the said Act expressly provides that no personal liability attaches to a County Governor for acts done in the exercise of his power and functions under the Act.

c) That in the premises the Plaintiff’s suit is totally misconceived and an abuse of the court process.

The ruling herein is on the said Preliminary Objection by the 5th Defendant. The parties were directed by the Court to file and serve submissions on the Plaintiff’s Preliminary Objection.

The 5th Defendant’s Submissions

The 5th Defendant's counsel filed submissions dated 13th March 2014 wherein he argued that the Plaintiffs at paragraph 11 of their Plaint allege that the 5th Defendant is the 'Executive Authority for Kiambu County", and that he commissioned the 4th Defendant to construct sewerage facilities on the suit properties. It was submitted that the 5th Defendant cannot be held to be personally liable for the alleged acts or omissions of the County Government of Kiambu. Further, that the County Government of Kiambu is specifically constituted, established and its functions allocated pursuant to Articles 6 and 176 of the Constitution as read together with the First Schedule of the said Constitution.

The 5th Defendant further submitted that section 6 of the County Government Act (No. 17 of 2012) the Kiambu County Government is declared by law to be a body corporate, and all claims arising ought of the exercise of a county governments functions should be pursued as against the county government and not its officers or servants. Further, that section 133 of the Act shields members, staff and servants of the county government from personal civil liability for any act done in good faith in the execution of their duty or directions. Therefore, that the 5th Defendant has been improperly joined in these proceedings and his name should be struck out. The decisions in Mwangi vs Tasker (1971) E.A. 385andNirmal Singh vs Ram Singh (1961) E.A. 168 were cited in this regard.

The Plaintiff’s Submissions

The counsel for the Plaintiffs filed reply submissions dated 2nd April 2014 wherein he submitted that he did not oppose the application, and referred to the provisions of Articles 176 and 179of the Constitution and section 6 of the County Government Act on the constitution of County Governments. It was further submitted that the Plaintiff is not an individual but an institution created by the Constitution, and he is not named nor is any personal liability or prayers being sought against him as a person. Lastly, it was submitted that Order 1 Rule 10(2) of the Civil Procedure Rules provides for substitution and addition of parties, and that should the Court allow the 5th Defendant's preliminary objection, the said Defendant be substituted with the County Government of Kiambu.

The Issues and Determination

I have read and carefully considered the pleadings and submissions made herein. The issues to be decided are firstly, whether the 5th Defendant’s Preliminary Objection raises a pure point of law, and if so, whether it has merit and should be upheld. The law on the circumstances when a preliminary objection may be raised was settled by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd (1969) EA 696, as follows:

“a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

A preliminary objection cannot therefore be raised if any fact requires to be ascertained, and the effect of a preliminary objection if upheld, renders any further proceedings before the court impossible or unnecessary.

The Plaintiffs have admitted in their submissions that they seek no personal liability as against the 5th Defendant, and therefore are suing him from acts arising from execution of his office as Governor of Kiambu County. There is thus a question of law raised as to whether in the circumstances the 5th Defendant can be sued in his capacity as Governor of Kiambu County, and the Court in this regard notes that section 133 of the County Government Act (No 17 of 2012) provides that members, staff and servants of a county government are exempted from personal civil liability for any act done in good faith in the execution of their duty or upon directions. Article 176 of the Constitution in this respect states that a county government for each county shall consist of a county assembly and a county executive, and under Article 179 the Governor is a member of the county executive committee and also the chief executive of the county. To this extent the Governor is both a member and staff of the county government and is to be afforded the protection in section 133 of the County Government Act.

The suit against the 5th Defendant is therefore improperly brought and is hereby struck out with costs payable to the 5th Defendant. The Plaintiffs have asked this Court that in the event that the 5th Defendant’s preliminary objection is upheld, the 5th Defendant be substituted with the County Government of Kiambu. The Court notes that this request was made in submissions, and no application formal or otherwise for the said substitution laying the grounds thereof has been made by the Plaintiffs. In addition this Court has by dint of this ruling struck out the suit against the 5th Defendant, and therefore there is no such defendant in existence for purposes of substitution. The Plaintiffs should accordingly make a formal application for joinder of any additional parties they consider to be necessary in this suit.

Orders accordingly.

Dated, signed and delivered in open court at Nairobi this ____4th____ day of ____May_____, 2015.

P. NYAMWEYA

JUDGE