https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5258

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **CONSTITUTIONAL PETITION NO. E003 OF 2026** **IN THE MATTER OF THE CONSTITUTION OF KENYA, PROTECTION OF RIGHTS AND JUDGEMENTAL FREEDOMS PRACTICE AND PROCEDURE RULES 2013** **AND** **IN THE MATTER OF ALLEGED DENIAL, VIOLATION AND/OR INFRINGEMENT OF ARTICLE 40 OF THE CONSTITUTION OF KENYA 2010** **BETWEEN** **SOSPETER KAGERA MANGERA ...............PETITIONER/APPLICANT** **-VERSUS-** **1. HON. MATHIAS ROBI ...................................... 1ST RESPONDENT** **2. SAMWEL MAKEMBA ....................................... 2ND RESPONDENT** **RULING** **INTRODUCTION** 1. Before me is a Notice of Motion dated 9th June 2026. It is brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 of the Civil Procedure Rules and Article 40 of the Constitution of Kenya, 2010. It was filed together with the Constitutional Petition herein of even date. The Petitioner/Applicant (hereinafter "the Applicant") sought the following orders: 2. **…Spent.** 3. **That pending the hearing and determination of the application, this Honourable Court do issue an order of temporary injunction restraining the Respondents, whether by themselves, their agents, servants, representatives and/or anybody acting under their directions, from demolishing the Applicant's stalls on Land Parcel No. BUGUMBE/MABERA/5472 and/or forcefully constructing a bus park/stage on the said land.** 4. **That pending the hearing and determination of the Petition, this Honourable Court do issue an order of temporary injunction in the same terms.** 5. **That an order be issued directing the OCS Mabera Police Station to ensure strict compliance with the orders issued herein.** 6. **That the costs of the application be provided for.** 7. Upon considering the application at the ex parte stage on 16th June, 2026, this Court issued interim orders of injunction. By the order it restrained the Respondents, their agents, servants and any person acting under their instructions from demolishing the Applicant's stalls on the suit land. Further, it directed the OCS Mabera Police Station to ensure strict compliance with the said order. 8. Thereafter, on 1st July, 2026, the Court gave directions on the disposal of the application. It directed that the Respondents file their responses within five (5) days and serve them on the parties, and each party to file written submissions within specific timelines. Pursuant to the Directions, the 1st and 2nd Respondents filed their Replying Affidavits sworn on 15th July 2026 and 19th June 2026 respectively. The Applicant and the 2nd Respondent filed written submissions dated 1st July, 2026 and 17th July, 2026 respectively. The 1st Respondent did not file any written submissions. **APPLICANT’S CASE** 1. The application was supported by the Applicant's own Affidavit sworn on 9th June 2026. He deponed in it that he is the registered proprietor of L.R. No. **BUGUMBE/MABERA/5472**. He added that it was on the same suit land the Respondents publicly declared through barazas and loudspeakers their intention to demolish structures thereon to pave way for construction of a bus park/stage. Further, that no written Notice was issued to him or his tenants on the planned demolition. Further, that on the night of 5th June, 2026 the Respondents attempted to carry out the threatened demolition using bulldozers and hired persons. The action was resisted by the stall owners and local youth. It resulted in heightened tension and breach of peace. Finally, the Respondents vowed to complete the demolition unless restrained by the Court. 2. In his Further Affidavit, the Applicant deponed that the 2nd Respondent admitted that he is the Chairperson of the Mabera Market traders/ members at the time of institution of the Petition. He deponed further that the 2nd Respondent admitted in His Replying Affidavit that the stalls on Parcel No. **BUGUMBE/MABERA/5472** belonging to the Applicant were, indeed, partly demolished but denied liability. He further deponed that the 2nd Respondent did not deny that the parcel of land in issue is indeed a private land and not public. Lastly, he deponed that he and other stall owners contributed monies to the 2nd Respondent to ensure smooth operation of the market affairs. Thus, thus the 2nd Respondent owed him a duty of care. **THE RESPONDENTS' CASE** 1. The 2nd Respondent, Samwel Makemba, filed a Replying Affidavit sworn on 19th June, 2026. He deponed that he is the Chairperson of Mabera Market members/ traders, an Office he held since 2024. He stated that his responsibilities were limited to coordination of market affairs, cleanliness, security and the general welfare of traders. He deponed further that he had no statutory or legal mandate to issue demolition orders or directives. He added that he never issued any notice, directive or authorisation for demolition of the Applicant's stall or any other structure. He stated that he was not present at the scene of the alleged demolition. Further, no evidence had been produced linking him personally to the alleged demolition or to show that the persons who carried it out acted under his instructions or control. Lastly, he stated that his joinder in the proceedings was misconceived and amounted to misjoinder. He prayed that the Applicant's application be dismissed with costs. 2. The 1st Respondent, Hon. Mathias Robi, filed a Replying Affidavit sworn on 15th July 2026. In it he deponed that he was the sitting Member of Parliament for Kuria West Constituency. He stated further that he was never served with any pleadings in this matter. He only became aware of the Petition on 11th July, 2026 when he was alerted of it by the 2nd Respondent. He deponed that he had never committed any of the acts or omissions alleged against him. He deponed further that to his knowledge, the construction of a modern market and bus park within Mabera Market is a National Government project undertaken by the State Department for Housing under the "Boma Yangu", "Bottom-Up Economic Transformation Agenda (BETA)" and "Affordable Housing Board" programs, exclusively. 3. He deponed further that the President of the Republic himself laid the foundation stone for the project on 23rd March, 2026 (annexed as **"MR1"**). He deponed that he had never pronounced any demolition of any person's premises within Mabera Market. He deponed that the Applicant had not adduced any evidence linking him to the acts complained of, including the identity of the bulldozer used or the persons allegedly hired. Lastly, he deponed that he was wrongly joined, the Petition proper lay against the Government of Kenya. **THE APPLICANT'S SUBMISSIONS** 1. In his written submissions dated 1st July, 2026, the Applicant framed the sole issue for determination as being whether an order of temporary injunction ought to be granted as prayed. He relied on Order 40 of the Civil Procedure Rules and the decision in **Giella v Cassman Brown & Co. Ltd [1973] EA 358** as setting out the applicable three-pronged test. 2. On the *prima facie* case, the Applicant submitted that he was the registered owner of L.R. No. **BUGUMBE/MABERA/5472**. He held a Title Deed to that effect. His title was not disputed by either of the Respondents. He submitted further that he had demonstrated, by way of affidavit and photographic evidence, that the Respondents invaded his private property without any colour of right or authority. The Respondents invaded his parcel with the aim of constructing a bus park thereon. Further, they did so without following the law on compulsory acquisition of private property for public use. He concluded on the issue by submitting that he had a *prima facie* case with a high probability of success. 3. On irreparable harm, the Applicant submitted that he had erected permanent structures on the suit land which served as a commercial hub. The hub was a property depended upon by himself, his tenants and the wider community. He argued that the harm occasioned by demolition would be a "catastrophe" impacting his socio-economic wellbeing, that of his tenants, and the community at large such that the application passes this limb of the test. 4. On the balance of convenience, the Applicant submitted that as registered proprietor he was entitled to protection of his property. He argued that on his part, the Respondents were illegal trespassers purporting to misuse positions of power and influence to disenfranchise him of his property. Further, that the law on compulsory acquisition had not been followed, if at all the Respondents intended to put the land to public use. He accordingly prayed that the temporary injunction sought in the Notice of Motion dated 9th June, 2026 be allowed. **RESPONDENT’S SUBMISSIONS** 1. In his written submissions dated 17th July, 2026, the 2nd Respondent framed two issues for determination. These were (i) whether his joinder as a party to the proceedings was tenable; and (ii) whether his position as Chairperson of the market confers upon him a mandate to issue demolition directives. 2. Relying on **Order 1 Rules 3** and **10(2)** of the **Civil Procedure Rules** and the decisions in [**Julius Meme v Republic & another [2004] KEHC 2623 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2004/2623/eng%402004-06-25)**,** **Deported Asians Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 (SCU)** and [**Pizza Harvest Limited v Felix Midigo [2013] KEHC 57 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/57/eng%402013-02-12),he submitted that he was improperly joined. He added that joinder of a party requires a demonstrable cause of action or legal interest in the matter before a court. Further, his office as the Market Chairperson was purely administrative and representative. He argued that no statutory instrument (including the County Governments Act, 2012 and the Urban Areas and Cities Act, 2011) clothed him with authority over demolition or development of public infrastructure. He submitted further that any such mandate, if it exists, resides with the relevant government organ under the Fourth Schedule to the Constitution. He prayed that his joinder be found improper and he be discharged from the proceedings with costs. **ISSUES FOR DETERMINATION** 1. Having considered the Notice of Motion, the supporting affidavit, the two Replying Affidavits, the law and the rival submissions filed by the Applicant and the 2nd Respondent, the following issues arise for determination: 2. Whether the Applicant has satisfied the threshold for the grant of a temporary injunction; 3. Whether the joinder of the 1st and 2nd Respondents to these proceedings is proper; 4. Whether the order directing the OCS Mabera Police Station to ensure compliance ought to be maintained; and 5. Who bears the costs of the application. **ANALYSIS AND DETERMINATION** 1. I begin the analysis of he issues in sequence. 2. **Whether the Applicant has satisfied the threshold for grant of a temporary injunction** 3. The law on temporary injunctions is codified under **Order 40** of the **Civil Procedure Rules**. It is based on an imminent danger or risk of an owner’s property being wasted or damaged by the Respondent who is bent on doing so without permission or colour of right of the owner. And there must be a cause of action pending between the two or more parties over the said property. 4. The principles applicable in such situations were settled in the celebrated case of **Giella v Cassman Brown & Co. Ltd *[1973] EA 358,*** where the Court held: "First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide the application on the balance of convenience." 1. It is also important, regarding the meaning of a ***"prima facie case***" for purposes of the first limb of the *Giella* test, to refer to the Court of Appeal's decision in [***Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2003/175/eng%402003-03-07)**.** In it the Court held that, “ *A Prima facie case is not one which must succeed at trial, but one which on the material placed before the Court, discloses that a right has apparently been infringed by the opposite party, calling for an explanation or rebuttal, and which raises a triable issue meriting further inquiry, without the Court having to resolve at that stage the conflicting claims of fact or law which will ultimately fall for determination at the full hearing."* 1. On the said first limb then, the Applicant has annexed as **“SK-1”** a copy of a Title Deed in respect of L.R. No. **BUGUMBE/MABERA/5472**. Indeed, it shows the land is registered in his name. As rightly submitted on his behalf, his ownership of the suit property is not controverted the Respondents. Further, the 1st Respondent's depositions as supported by the annexures, and even his own submissions, confirm that the intended development is targeted at and partly executed on the very market area in which the Applicant's stalls are situated. Further, that "partial demolition" had already been carried out and site possession attempted to be commenced by the time of bringing the instant application. 2. The applicant having established the fact that he is one of the market traders’ members group of which the 2nd Respondent is the Chairperson, a fact the latter does not dispute, it is strange and unexplained that the Chairperson of the owners of stalls in the market area under which the suit land falls does not know specifically who is carrying out the demolitions or about to carry out the construction of the bus park. The question is, does it mean that as the Chairperson of all the traders for the last two years, as he deponed, he has never been consulted by anyone or any government institution over intended construction of any developments on any or some of the market plots? In my view, being the Chairperson in charge of the security and welfare of the members he must be clearly in picture of the person(s) who are carrying out the alleged activities because the security of the traders’ stalls or property for which they contribute to keep his Office running is not a small matter to go unnoticed. 3. Further, besides the legal position under Section 107 and 109 of the Evidence Act that he who alleges proves, the 1st Respondent makes deep and serious allegations about national government projects as “*Boma Yangu*”, “BETA” and the Affordable Housing projects being the ones being constructed. He annexed a photo to show that His Excellency the President of Kenya laid a foundation stone for the same project on 26th March 2026. There is no single document or evidence he produced to the effect that the said project foundation stone was laid on the Petitioner’s land, the suit land over which he and the 2nd Respondent are alleged to have popularized the construction of a Bus Park. While there may be a government project under the *Boma Yangu*, *BETA* or Affordable Housing project within the vicinity that is not a licence or reason for anyone, including government, to extend construction of any development onto private property without permission of the owner or properly acquiring the same by way of compulsory acquisition and promptly and justly compensating the private owner. Worse (action) is where anyone, including government, would proceed on a trajectory of trampling down citizens’ rights, including the right to property as provided for under Article 40 of the Constitution. 4. In my humble view, the two Respondents put forth general denials aimed at diverting the mind of the court from the real complaint and issues. Thus, I make a finding that the Applicant has established a *prima facie* case that he is entitled to the protection of his proprietary rights under Article 40 of the Constitution pending a full inquiry into whether the process leading to the intended demolition, use, disenfranchisement, and upcoming development complied with the law, including whether any (just and) compulsory acquisition, compensation or relocation process was undertaken. 5. The applicant having gone over the first hurdle is not necessarily automatically entitled to the grant of an order of injunction. He still has to demonstrate that he is likely to suffer irreparable harm which cannot be compensated by way of damages. On the meaning of ***"irreparable harm,"*** it is proper to refer to the Court of Appeal's decision in [**Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/606/eng%402014-04-04)**.** The Court held in it that irreparable injury does not connote injury that is physically impossible to repair, but one that cannot be adequately compensated by an award of damages, whether because it is not capable of being quantified in monetary terms or because, even if quantified, damages would not be a sufficient remedy it in the circumstances. Further, that this limb must be established independently of, and is not subsumed by, a strong prima *facie case*. 6. On this limb therefore, the Applicant deponed to and submitted on the fact that he has stalls on the suit land, the likely loss of tenants, loss of rental income and heightened insecurity occasioned by the events of 5th June, 2026. He further deponed to the demolished structures annexed as **“SK 2a”** and **“SK 2b”** on the suit land constituting a commercial hub relied upon by himself, his tenants and the wider community. The documents produced by the 1st Respondent himself confirm that demolition had already been partially executed on the site. It caused tension and insecurity. 7. In my humble opinion, this court finds that a structure, once demolished, can be rebuilt but its aesthetic and other value cannot be ‘resurrected’ easily by an award of damages. This is particularly for the reasons that structures such as the Petitioner’s are in a strategic place in the market they lie, and the tenants or occupiers or owners have business whose goodwill may not be easily recovered later. Moreover, the harm of losing one's business premises and the disruption occasioned to livelihoods dependent thereon is not readily quantifiable or reparable in monetary terms as it has ripple effects in social lives that depend on it. I am satisfied that the Applicant has demonstrated a real risk of irreparable harm that may not be easily compensated by damages should the status quo not be preserved. 8. On the balance of convenience which the court is enjoined to consider, it is trite that once the first two limbs are established but the court is still in doubt as to what the proper case is, it should weigh the facts as against the law and decide the application on a balance of convenience. In that regard, the Court of Appeal in [**Amir Suleiman v Amboseli Resort Limited [2004] KEHC 2624 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2004/2624/eng%402004-11-29) held that this limb requires the court to weigh the hardship the Applicant would suffer if the injunction is refused and he ultimately succeeds at the trial, against the hardship the Respondent would suffer if the injunction is granted and he ultimately succeeds. This would make the Court to adopt the course that carries the lower risk of injustice. This means that where the potential harm to the parties is not evenly matched, the court will generally lean towards preserving the status quo pending determination of the rights of the parties at trial. 9. On this last limb therefore, I bear in mind that what is sought is not a permanent bar to the development of a market or bus park. The same is conceded by the 1st Respondent who surprisingly purports to speak on behalf of a third party to be, although not yet proven, a legitimate government undertaking. However, what is sought herein for now is basically a preservation of the *status quo* on the Applicant's specific portion of land pending determination of the Petition. Once it is established as to the legality of the process adopted particularly regarding acquisition of private property for it, and a confirmation of the question of due process and compensation under Article 40 of the Constitution was honoured, then things will fall in place. It is worth noting that power is transient. Even those persons who are in power at the present will at one time depart and leave it to others. They should not forget, by looking at the short term selfish ambition, that they too will be on the weak positions when out of offices, and will seek the protection of the law they themselves trampled underfoot and if they do not respect and ennoble it when in office it will be too late. The sanctity of title off property to the weak, poor and vulnerable is as important as that of the strong, wealth and powerful and it is one of the key pillars of social and economic stability. It should be respected. 10. Therefore, it is my view that no prejudice of an irreversible nature accrues to the Respondents by maintaining the *status quo* for the limited period necessary to conclude this Petition. On the other hand, the prejudice to the Applicant of losing his property without due process, should the Petition ultimately succeed, would be virtually irreversible if the construction is allowed to take place and occupiers by or through government permission are given the chance to take over the property in issue. Therefore, the balance of convenience tilts in favour of preserving the subject matter of the Petition. 11. One issue critical at this stage was raised: trespass. I note the party’s concern but I do not want to go so far as to find, as urged by the Applicant, that the Respondents are established "illegal trespassers". This characterization goes to calling on this Court to determine the merits of the Petition inchoately yet it is a matter for determination after a full hearing is done, and not at this interlocutory stage. 12. Accordingly, I find that the Applicant has met the threshold for grant of an order of temporary injunction pending the hearing and final determination of the Petition. Thus, the interim order issued on 16th June, 2026 is hereby confirmed. It shall remain in force for the next twelve months, pending the hearing and determination of the Petition, hopefully within the stated period or a longer one subject to an extension being granted. **(ii) Whether the joinder of the 1st and 2nd Respondents is proper** 1. The 2nd Respondent argued that his joinder is improper for want of any statutory mandate over demolition or development matters, and that no evidence links him personally to the events of 5th June, 2026. The 1st Respondent has similarly disclaimed personal involvement. He too asserts that the project is a National Government initiative under the Affordable Housing Board. He argued that he had no role either as Member of Parliament or in his personal capacity. Neither point was addressed in the Applicant's submissions, which were confined to the question of the injunction. 2. It is trite, however, that questions of joinder and of the ultimate liability, if any, of named Respondents in proceedings alleging violation of constitutional rights are frequently interwoven with the merits of the dispute. The Applicant's supporting affidavit makes direct factual allegations that both Respondents publicly declared, through barazas and loudspeakers mounted on vehicles, their intention to demolish the structures in question. This has not been specifically denied by the two respondents. If the projects were of the national government what business did he two have in them as to participate in popularizing the third party’s projects? Whichever answer the Respondents have to these questions and be that as it may, whether that allegation is made out and whether either Respondent bears any responsibility whether by way of instigation, authorisation or otherwise for the events of 5th June, 2026, these are matters of fact that are in dispute. They cannot ‘safely’ be resolved on the basis of competing affidavits at an interlocutory stage without the benefit of a full hearing of the Petition. 3. I am guided by Order 1 Rule 9 of the Civil Procedure Rules. It provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and that the Court may deal with the matter in controversy so far as it regards the rights and interests of the parties actually before it. I am equally alive to the authorities cited by the 2nd Respondent, which properly caution against joinder founded on mere association rather than a demonstrable cause of action. However, striking out a party at this stage, on the strength of that party's own affidavit denying involvement yet there is affidavit evidence that the two parties participated on broadcasting the alleged contentious activities of demolition would amount to a determination of a disputed question of fact in that party's favour without subjecting it to the rigour of a full hearing. Such a course this Court is reluctant to take, particularly in proceedings alleging violation of constitutional rights under Article 40. 4. In the premises, the prayer to strike out the 1st and 2nd Respondents from these proceedings is premature. It is hereby declined, without prejudice to either Respondent renewing the objection at the hearing of the Petition, or to the Applicant seeking to join any additional necessary party. **(iii) The order directed at OCS Mabera Police Station.** 1. Given the finding that the injunction restraining demolition is confirmed pending hearing of the Petition and the history of attempted forceful demolition at night resulting in a breach of peace and there being tensions and a likelihood of insecurity resulting, it remains necessary and proportionate that the order directing the OCS Mabera Police Station to ensure strict compliance, as and when he/she will be called to assist with the enforcement of these injunctive orders be maintained. This is to preserve peace and give effect to the orders of this Court. 2. For the foregoing reasons, I make the following orders: 3. The order of temporary injunction issued on 16th June, 2026 restraining the 1st and 2nd Respondents, whether by themselves, their agents, servants, representatives and/or anybody acting under their directions, and any other person or entity not authorized expressly in writing by the Applicant, from demolishing the Petitioner's/Applicant's stalls on L.R. No. **BUGUMBE/MABERA/5472** and/or forcefully constructing a bus park/stage thereon, is hereby confirmed. It shall remain in force for twelve months subject to extension upon application based on satisfactory reasons, pending the hearing and final determination of the Petition, whichever is earlier. 4. The order directing the OCS Mabera Police Station to ensure, upon being called upon, strict compliance with the order in (a) above is hereby confirmed and shall remain in force pending the hearing and final determination of the Petition. 5. The prayer by the 2nd Respondent to strike out the 1st and 2nd Respondents from these proceedings on grounds of misjoinder at this stage is declined as being premature, without prejudice to either Respondent re-agitating it formally at a later stage of the Petition. 6. Costs of the application shall abide the outcome of the Petition. 7. This Petition is to be mentioned on 6th October 2026 for compliance with Order 11 of the Civil Procedure Rules. The Petitioner to filing a Further Affidavit in response to the 1st Respondent is extended for a further fourteen (14) days. Parties to file trial bundles within the next thirty (30) days of this Ruling. 8. It is so ordered. **Ruling Dated, Signed and Delivered Virtually Via The Teams** **Platform This 30th Day of July 2026.** **HON DR. IUR NYAGAKA,** **JUDGE** **From 11: 00 AM in the presence of,** Mwita Nyangi Advocate for the Petitioner Mr. Kiera Advocate for the 1st Respondent 2nd Respondent in person in open Court