[2023] KEELC 17995 (KLR)

Kenafric Properties Limited v Denyo & 34 others (Environment & Land Case E093 of 2023) [2023] KEELC 17995 (KLR) (15 June 2023) (Ruling)

Neutral citation: [2023] KEELC 17995 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E093 of 2023

MD Mwangi, J

June 15, 2023

Between

Kenafric Properties Limited

Plaintiff

and

George Odanga Denyo

1st Defendant

Joyce Kamau

2nd Defendant

Samuel Kisilu

3rd Defendant

Kilonzo Nyamai

4th Defendant

Pastor George

5th Defendant

Victor Odhiambo Ouko

6th Defendant

Samuel Omondi Odhiambo

7th Defendant

Michael Waithaka

8th Defendant

Dennis Muchiri

9th Defendant

Michael Muoki

10th Defendant

Michael Mang’Enyi

11th Defendant

Peter Hassan Rige

12th Defendant

Lucy Achieng

13th Defendant

Leonard Onyango

14th Defendant

Jackson Oketch

15th Defendant

Beatrice Auma Odhira

16th Defendant

Morris Okoth

17th Defendant

Grace Mbonge Kigwa

18th Defendant

Robert Masinga

19th Defendant

Susan Wangari Kanyoro

20th Defendant

George Kiptum

21st Defendant

Kevin Munyao

22nd Defendant

Jackson Mwanzia

23rd Defendant

Gideon Bosire

24th Defendant

George Raini

25th Defendant

Millicent Aoko

26th Defendant

Linet Kanini

27th Defendant

Titus Ndolo

28th Defendant

Meshack Kariithi

29th Defendant

Godfrey Wanyama

30th Defendant

Samuel Gitau

31st Defendant

Euticus Kago

32nd Defendant

Patrick Kigadi

33rd Defendant

Jackline Wambua

34th Defendant

Erasto Omondi

35th Defendant

(In respect to the Notice of Motion application dated 7th March 2023 seeking an order of eviction against the Defendants under the provisions of Order 36 (1) (b) of the Civil Procedure Rules, Section 152 (A), 152(B), 152 E & 152G of Land Laws (Amendment) Act, No. 28 of 2016, sections 3,13 & 19 of the ELC rules 1 &22 of the Practice Directions in the ELC Court)

Ruling

Background of the Plaintiff’s Application. 1. By way of notice of motion application dated March 7, 2023, the plaintiff prays for orders of eviction, summarily against the defendants from all that parcel of land known as LR No 339/109 (IR 95767) registered in the name of the plaintiff. Further that the OCS, Ruaraka Police Station do assist the plaintiff/applicant in enforcing the order once issued. The grounds upon which the application is based are on the face of the application.

2. The plaintiff asserts that it is the lawful owner of the suit property LR No 336/109 (IR 95767) whereby it has enjoyed quiet possession but also faithfully paid the land rates and rent. This was so until the year 2021 when the Nairobi Metropolitan Services (NMS) conducted demolitions at an adjacent parcel of land known as LR No 336/64. The defendants then moved to the edge of the plaintiff’s land and constructed some illegal structures therein thereby trespassing and illegally encroaching onto the plaintiff’s land.

3. It is the plaintiff’s case that it promptly and duly notified the Nairobi Metropolitan Services of the illegal encroachment into its land by the defendants. The Nairobi Metropolitan Services advised the plaintiff to follow the due process of the law to remove the defendants from its land. The plaintiff obliged and therefore affirms that it has complied with the provisions of section 152 E of the Land Act by issuing a 3 months’ notice to the defendants and which was duly published in the Daily Nation Newspaper of February 22, 2022 and the Standard Newspaper of February 22, 2022. Personal service was also duly effected on the defendants by a licensed process server on February 23, 2022.

4. In further compliance with the provisions of section 152 E of the Land Act, the plaintiff through its advocates notified the Deputy County Commissioner, Kasarani Sub-county, Nairobi County Regional Commander, OCPD Ruaraka, OCS Ruaraka and the Director General of the defunct Nairobi Metropolitan Services. The plaintiff avers that it has therefore complied with section 152 E of the Land Act fully.

5. Despite service of the notices upon the defendants, the plaintiff alleges that the defendants have failed and declined to comply and have continued to illegally occupy the suit property blatantly violating the plaintiff’s right to its property under article 40 of the Constitution.

6. The defendants had attempted to challenge the notices issued to them by the plaintiff by filing a case ELCC E 185 of 2022 (Shadrack Juma Nyambu suing on his own behalf and on behalf of the residents of Baba Dogo Community v Kenafric Properties Ltd & others) but the suit was struck out with costs on January 19, 2023. The plaintiff has attached a copy of the ruling to the supporting affidavit.

7. The application is further supported by the affidavit of Bharatkumar Velji Punja Shah.

Service Upon The Defendants. 8. On March 23, 2023, the court directed service upon the defendants by way of substituted service. The plaintiff was ordered to serve both the summons to enter appearance and the notice of motion application clearly indicating the date for inter partes hearing. The court on April 27, 2023 confirmed service and proceeded to hear the application by the plaintiff by way of oral submissions. The defendants despite the service did not enter appearance nor file a response to the notice of motion application.

Submissions By The Advocate For The Plaintiff. 9. Mr E. Mwangi advocate for the plaintiff in his submissions reiterated the grounds in support of the application. He submitted that the ownership of the suit property was not in dispute pointing out the plaintiff’s ownership documents as evidence of ownerships. He further emphasized that the plaintiff had complied with the provisions of section 152 E of the Land Act to the letter.

10. The defendants’ attempt to challenge the notices issued by the plaintiff to them in court in ELCC E185 of 2022 failed after the case was struck out with costs. A copy of the ruling is attached to the supporting affidavit. The plaintiff’s advocate therefore urged the court to allow the application.

Issues For Determination. 11. Having considered the notice of motion application together with the supporting affidavit thereof and the submissions by the plaintiff’s advocate, the court is of the view that the only issue for determination is whether the plaintiff’s application is merited.

Analysis and Determination. 12. Under the provisions of order 36 rule 1 of theCivil Procedure Rules, a plaintiff who seeks judgement for a liquidated demand with or without interest, or the recovery of land, with or without a claim for rent or mesne profits, can apply for summary judgement. The plaintiff’s case is one for recovery of land as elaborated earlier on. The plaintiff is the lawful owner of the suit property LR No 336/109 (IR 95767) and seeks to remove the defendants from the suit property on the basis that they have unlawfully occupied a portion of it without any basis or justification whatsoever.

13. The plaintiff has in the supporting affidavit in great details explained the steps it has taken to comply with the mandatory provisions of the Land Act. Compliance with the provisions of section 152 of the Land Act is a prerequisite to the grant of orders of eviction.

14. Section 152E of the Land Laws (Amendment) Act No 28 of 2016 clearly provides that the notice to vacate must be issued not less than three months before the intended date of eviction.

15. The section provides as follows: -“Eviction notice to unlawful occupiers of private land(1)If, with respect to private land the owner or the person in charge is of the opinion that a person is in occupation of his or her land without consent, the owner or the person in charge may serve a notice, of not less than three months before the date of the intended eviction.(2)The notice under subsection (1) shall-a)be in writing and in a national and official language;b)in the case of a large group of persons, be published in at least two daily newspapers of nationwide circulation and be displayed in not less than five strategic locations within the occupied land;c)specify any terms and conditions as to the removal of buildings, the reaping of growing crops and any other matters as the case may require; andd)be served on the deputy county commissioner in charge of the area as well as the officer commanding the police division of the area.”

16. The section was enacted after the observation by Mumbi J (as she then was) in the case of Mitu-Bell Welfare Society v Attorney General & 2 others [2013] eKLR, that,“…. This country has yet to develop legislation and guidelines for eviction of persons occupying land which they are not legally entitled to occupy. However, as a member of the international community and a signatory to various United Nations treaties and conventions, it is bound by such international guidelines as exist that are intended to safeguard the rights of persons liable to eviction. Article 2(5) and (6) of the Constitution make the general rules of international law and any treaty or convention that Kenya has ratified part of the law of Kenya. Consequently, the state, state organs and all persons, in carrying out evictions, should do so in accordance with the United Nations Guidelines on Evictions as enunciated by the United Nations Office of the High Commissioner for Human Rights in General Comment No 7. ”

17. The UN guidelines requires appropriate procedural protection and due process as essential aspects of all human rights and especially in relation to a matter such as forced evictions which directly invoke a large number of rights recognized in the two International Covenants on Human Rights. The procedural protections which should be applied in relation to forced evictions include:a.an opportunity for genuine consultation with those affected;b.adequate and reasonable notice for all affected persons prior to the scheduled date of eviction;c.information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected;d.especially where groups of people are involved, government officials or their representatives to be present during an eviction;e.all persons carrying out the eviction to be properly identified;f.evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise;g.provision of legal remedies; and(h)provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.

18. In the case ofSolome Naliaka Wabwile v Alfred Okumu Musinaka [2022] eKLR, Olao J stated that;“…. It must be remembered that under the Land Act 2012, the eviction of persons from private land can take either of the following routes: -1. By the land owner issuing a notice to the person in occupation of his land without consent to vacate within 3 months. Such notice is issued under section 152 E of the Land Act. The person served with such a notice has a recourse under section 152 F to apply to the court for relief. The court may confirm the notice and order the person to vacate or it may vary, alter, suspend or make additions to the notice as it deems equitable and just.2. By the land owner filing a suit for the eviction of a person who is occupying his land without consent. The court, after hearing both the land owner and the occupier of the land may issue an order for eviction of the person who is unlawfully occupying the land. That is the route that the defendant herein took by his counter – claim. Section 152 A of the Land Act provides that no person shall unlawfully occupy private, community or public land.Whichever route the owner of the land takes in evicting persons who are unlawfully occupying his land, there are mandatory procedures provided under section 152 G (a) to (i) of the Land Act which must be adhered to during the eviction process.”

19. In the case ofAtik Mohamed Omar Atik & 3 others v Joseph Katana & another [2019] eKLR J.O. Olola stated as follows on the procedure for eviction of persons unlawfully occupying private, community or public land:“In this regard, the first step in an eviction is for the lawful owner to serve a notice of eviction in accordance with the law. The essence of serving an adequate and reasonable eviction notice lies in the need to give the persons affected an opportunity to seek relief in court. Under section 152E of the land Act, any person or persons served with such notice may apply to court for relief against the notice.”

20. I have keenly perused the plaintiff’s suit and the application before me. I am convinced that the plaintiff has fully complied with the provisions of section 152E above. Further, I note that the defendants had an opportunity to challenge the notice of eviction served upon them by the plaintiff in Nairobi ELCC E185 of 2022- Shadrack Juma Nyambu (suing on his own behalf and on behalf of the residents of Baba Dogo Community) v Kenafric Properties Limited and others. The suit was however, after due consideration by the court struck out with costs on January 19, 2023. The defendants despite being served with summons to enter appearance and the application by the plaintiff did not file any response.

21. I consider this a suitable case for entry of judgement summarily. I hereby allow the plaintiff’s application with costs.

22. Accordingly, the court issues an eviction order against the defendants, their respective agents, employees and/or servants, tenants, family members or anyone claiming occupancy rights under the defendants’ title from all that parcel of land known as LR No 339/109(IR 95767) registered in the name of the plaintiff/applicant.

23. The Officer Commanding Station Ruaraka Police Station is directed to assist the plaintiff in enforcing the order.

24. The court further directs that the eviction be done in strict compliance with the law.

25. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JUNE 2023. M.D. MWANGIJUDGEIn the virtual presence of:Mr. Kimani holding brief for Mr. Elijah Mwangi for the Plaintiff/Applicant.No appearance for the Defendants/Respondents.