https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5299

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAKURU** **PETITION NO.30 OF 2013** **ARTHUR KAMAU KARIUKI**....................................................................**........................PETITIONER** **VERSUS** **CHIEF LAND REGISTRAR**......................................................................................**1ST RESPONDENT** **NATIONAL LAND COMMISSION………………………......................................2ND RESPONDENT** **SETTLEMENT FUND TRUSTEES………………………………………..............3RD RESPONDENT** **DIRECTOR OF SURVEY………………………………………………………..…4TH RESPONDENT** **PRIME WAYS COMPANY LIMITED……………………………………………5TH RESPONDENT** **LALLY FARM LIMITED………………………………………………………….6TH RESPONDENT** **AGRICULTURE DEVELOPMENT CORPORATION…………………...... INTERESTED PARTY** **RULING** 1. This ruling is in respect of a Notice of Motion dated 27th February, 2026, by the Petitioner/Applicant seeking the following orders: 2. ***THAT the Petitioner be granted leave and orders to forthwith, evict the 5th Respondent herein Primeways Co. Ltd from L.R. Numbers 20591/50 and L.R. 20591/51 occupied by the said Primeways Co. Ltd.*** 3. ***THAT the eviction order be implemented with the assistance of the Kongoni Police Station Officers.*** 4. ***THAT cost of the eviction be borne by the Respondent Primeways Co. Ltd.*** 5. ***Any other or such further relief as this Honourable Court may deem fit to grant.*** 6. The Application is supported by the annexed Affidavit sworn by Arthur Kamau Kariuki, where he deponed that on the 7th November, 2019 Primeways Company Limited had been served through its advocates with a court decree ordering it to give vacant possession of Land to him, and directed the Chief Land Registrar and District Land Registrar to expunge the registration of titles Nakuru/Moi Ndabi settlement scheme/1267 and 1322. 7. The Petitioner/Applicant stated that the Land Registrar Naivasha had also acknowledged receipt of the same decree on the 22nd October, 2019. The decree required vacant possession of the Land Parcels L.R No.20591/50 and 20591/51 to be handed over by 2nd November, 2019. 8. On 18th November 2019, the Petitioner/Applicant deponed that he had applied to the Naivasha Land Registry to register the decree against the title registers for the two parcels and obtained a Certificate of Official Search on 27th November 2019, confirming the two titles had been expunged, with the registry noting *"This record does not exist."* 9. The Petitioner/Applicant deponed that the 5th Respondent had subsequently filed Civil Appeal No. E185 of 2025, which the Court of Appeal dismissed on 27th January 2026. He further stated that despite this, on 21st February,2026, the Petitioner/Applicant physically entered the land and found workers identifying themselves as 5th Respondents employees occupying it on their employer's instructions; he observed that vegetation and mature trees were being destroyed and general neglect, and feared further malicious waste of the property. On 23rd February,2026, the 5th Respondent had written to his advocates purporting the appeal is still alive. 10. The Petitioner/Applicant stated that the 5th Respondent is denying him the right to enjoy the fruits of the Judgment delivered, hence has applied for eviction orders pursuant to the Judgment. 11. The 5th Respondent opposed the Petitioner’s application through a replying affidavit sworn on 20th April, 2026 by its Advocate, and stated that the Civil Appeal No. E185 OF 2025 was dismissed for non-attendance on 27th January, 2026, after their official email account crashed, causing them not to receive the hearing notice or meeting link. He further stated that the 5th Respondent had moved to the Court of Appeal to reinstate the said Appeal and to reinstate the stay of execution orders issued on 13th February, 2020. 12. He also denied the claim that the 5th Respondent had destroyed the vegetation and was in contempt of court, as a caretaker was only on the land to protect it from trespassers. He further stated that if the court grants the orders sought, the substratum of the Court of Appeal proceedings would be rendered nugatory. 13. Counsel urged the court to maintain the status quo as the Petitioner would not suffer any prejudice if the status quo was preserved while awaiting for the Court of Appeal’s decision. **PETITIONER/APPLICANT’S SUBMISSIONS** 1. Counsel for the Applicant filed submissions dated 27th April, 2026, and relied on the doctrines of equity and submitted that equity does not aid the indolent as the 5th Respondent failed to comply with court orders. Counsel further submitted that the Respondent’s reasons are mere excuses, noting that the 5th Respondent had failed to appear in court on two distinct hearing dates on 4th November, 2025, and 27th January, 2026. 2. Counsel relied on the case of **Musila v. Thengi and Union Insurance Co of Kenya Ltd v. Ramzan Abdul Dhanji Civil Application No.179 of 1998**, and argued that the 5th Respondent had been content to rely on stay orders without actively prosecuting its appeal or checking the status of the case on the Court Tracking System. 3. Counsel further submitted that there was no court order halting the Applicant from evicting the 5th Respondent, and given that the Applicant had satisfied all statutory requirements given the suit was determined in this court, the appropriate avenue to evict the 5th Respondent has been adopted and followed, and urged the court to allow the Application as prayed with costs. **5TH RESPONDENT SUBMISSIONS** 1. The 5th Respondent’s counsel filed submissions dated 28th April, 2026 and identified the following issues for determination: 2. ***Whether the dismissal of Civil Appeal No. E185 of 2025 for non-attendance constitutes a final determination on the merits of the Appeal, thereby disentitling the Petitioner to the eviction orders sought?*** 3. ***Whether this Honourable Court ought to stay its hand and decline to hear and determine the Petitioner’s Application pending the hearing and determination of the 5th Respondent’s reinstatement application before the Court of Appeal?*** 4. ***Whether the Petitioner has established a prima facie case for contempt of court to warrant the intervention of this Honourable Court?*** 5. On the first issue, counsel submitted that the dismissal of Civil Appeal No. E185 of 2025, was for non-attendance and did not amount to a final determination of the appeal on its merits. The dismissal was merely procedural and remained under challenge before the Court of Appeal through a pending application for reinstatement, in respect of which the Court of Appeal had already issued directions. Counsel argued that there were active appellate proceedings directly touching on the substratum of the dispute, and the Petitioner was wrong in portraying the dismissal as a final determination of the appeal. 6. Counsel further submitted that the court should decline to hear and determine the Petitioner's application for eviction before the reinstatement application is heard and determined for reinstatement in the Court of Appeal. Counsel relied on the cases of **Philip Chemwolo & Another v Augustine Kubende [1982–88] KAR 103**, **Family Bank Limited v Bernard Gikundi Mwarania & 5 Others**, and **Pere v Osoi [2025] KECA 1417 (KLR)**. 1. The 5th Respondent’s Counsel further submitted that Articles **159(2)(d)** of the Constitution require courts to administer justice without undue regard to procedural technicalities and to safeguard the right of every party to access justice and receive a fair hearing. Counsel also relied on the case of **Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 7 Others (2014) eKLR,** and submitted that it would be a grave injustice for the court to proceed to issue eviction orders based on a dismissal that is merely procedural and which is actively being challenged before the appellate court. The Petitioner’s attempt to characterize the dismissal as a final determination on the merits is erroneous, misleading and amounts to an abuse of the court process 2. On the second issue, counsel urged the court to stay these proceedings pending the outcome of the reinstatement Application in the Court of Appeal, and relied on the cases of **Stanley Kang’ethe Kinyanjui v Tony Keter & 5Others (2013) eKLR, and Wanyange & another v Njoroge (2026) KECA 731(KLR).** Further, counsel stated that the eviction before the determination of the reinstatement application would violate the constitutional rights to property under Article 40, access to justice under Article 48, and the right to a fair hearing under Article 50(1). 3. It was counsel’s submission that the Petitioner will not suffer any prejudice that cannot be compensated by costs if the status quo is maintained, and relied on the cases of **Kenya Commercial Bank v Ngatu & another (Civil Appeal E055 of 2025)** and **Equity Bank Limited vs West Link Mbo Limited (2013) KECA 320(KLR) Giella v Cassman Brown & Co. Ltd (1973) EA 358.** 4. On the third issue on the unsubstantiated allegations of contempt of court, counsel argued that the allegations concerning destruction of vegetation and wanton waste were unsubstantiated and unrelated to the substantive issues before the Court, and relied on the cases of Galactic **Kenya Limited v Attorney General & Another [2025] KECA 12 (KLR)** and Mutitika **v Baharini Farm Ltd (1985) KLR 229** to show that allegations of contempt must be proved beyond reasonable doubt. Counsel urged the court to dismiss the Application with costs. **ANALYSIS AND DETERMINATION** 1. The issue for determination is whether the Petitioner is entitled to the eviction orders sought against the 5th Respondent after the Appeal was dismissed and pending the application before the Court of Appeal for reinstatement of the Appeal? 2. It is on record that a Judgment was delivered in favour of the Petitioner and a decree issued to the effect that the 5th Respondent give vacant possession of L.R Nos.20591/50 and 20591/51 to the Petitioner by 2nd November. It is also not disputed that the decree ordered the Chief Land Registrar and District Land Registrar to expunge the registration of titles Nakuru/Moi Ndabi Settlement /1267 and 1322, which was served upon the Land Registrar. 3. The Applicant also stated that the Court of Appeal had dismissed Civil Appeal No. E185 of 2025, hence there is no existing stay of execution and the continued occupation of the land by the 5th Respondent denied him the fruits of his judgment. 4. It is also on record that the Respondent has not informed the court of any progress with the application for reinstatement of the Appeal. The Respondent has not told the court about the dates of the directions that the Respondent claims to have been given on the Application for reinstatement. Equity does not aid the indolent. Once an application is dismissed for non-attendance, a party is at liberty to proceed with the execution, unless there is an order stopping him/her from doing so. A party must convince the court with sufficient reasons vide an application for reinstatement why the same should be allowed, it is not automatic for the same to be allowed. Therefore, the Respondent cannot hinge his argument on the fact that it has filed an application for reinstatement in the Court of Appeal 5. The 5th Respondent argued that the dismissal of the appeal was procedural which resulted from non-attendance which is not a determination on merit of the Appeal. There is no order staying the execution of the decree, therefore the Applicant is at liberty to proceed with execution. 6. Consequently, I find that the Application dated 27th February 2026, has merit and is therefore allowed as prayed with costs, with the following specific orders: 7. ***The 5th Respondent, Primeways Co. Ltd is hereby ordered to give vacant possession of L.R. Nos. 20591/50 and L.R. 20591/51 occupied by the said Primeways Co. Ltd, within 30 days failure to which an eviction notice to issue.*** 8. ***The OCS Kongoni Police Station is hereby directed to assist with the enforcement of the eviction order.*** 9. ***The cost of the eviction be borne by the Respondent Primeways Co. Ltd.*** **DATED, SIGNED AND DELIVERED AT NAKURU THIS 18TH DAY OF AUGUST 2026.** **M. A. ODENY** **JUDGE**