https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5062

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT ISIOLO** **ELC APPEAL NO. E020 OF 2025** **LAWRENCE DANIEL KIRINY……………….APPELLANT/APPLICANT** **VERSUS** **SAMUEL BUNDI THURANIRA……….………………….RESPONDENT** **RULING** 1. Before me is the Notice of Motion Application dated the 20.07.2026, brought pursuant to the provisions of **Order 51 Rule 1 of the Civil Procedure Rules, 2010; and Sections 1A, 1B, 3 and 3A to the Civil Procedure Act, Chapter 21, Laws of Kenya** and wherein the applicant has sought the following orders: 2. ***This application be certified as urgent and be heard ex-parte as it concerns enforcement of a final judgment of the High Court.*** 3. ***That the OCS Kula Mawe Police Station be directed to provide security to the Appellant/Applicant at Plot No. 1021C Kambi ya Juu to enable him execute the honourable Judge’s Order/Decree of 5th February, 2026*** 4. ***Other orders/directions as the court may deem just and expedient****.* 5. The application is premised on the grounds stated on the face thereof. The grounds are: The Appellant lodged the appeal; the appeal was heard and determined; the appeal was allowed; the respondent was directed to remove the offensive gate from the suit property; the respondent has since declined to comply with the orders of the court; the timelines that were given to the respondents have lapsed; the applicant is desirous to implement the decree; the implementation of the decree cannot be actualised without provision of the security; and the OCS – Kulamawe Police Station has declined to provide security without an express court order. 6. The subject application is supported by the affidavit sworn on the 20.07.2026. The deponent of the supporting affidavit has reiterated the grounds contained in the body of the said application. In particular, it has been averred that the respondent was directed to remove the offensive gate which is located/erected on a portion of plot number 1021 C – Kambi ya Juu. Moreover, it has been averred that the removal of the offensive gate was to be undertaken within 30 days from the date of the decree. 7. The respondent has filed a replying affidavit sworn on the 27.07.2026. The respondent has raised several issues. The issues are: The respondent was aggrieved by the judgment and the decree of the court; the respondent thereafter lodged a notice of appeal; the intended appeal raises arguable issues; the intended appeal has overwhelming chances of success; and the court is functus officio since the respondent has filed and served a notice of appeal. 8. Furthermore, the respondent has posited thus: The applicant has neither extracted nor served the statutory notice under **Section 152E [2] of the Land Act 2012 [2016];** the failure to extract and serve the notice renders the application premature; the implementation of the decree will defeat the pending appeal and no basis has been laid to warrant the issuance of the orders sought. 9. The subject application came up for hearing on the 29.07.2026 and whereupon the advocates for the parties intimated that same were ready to proceed. To this end, the court issued directions and the application was duly canvassed. 10. Learned counsel for the applicant adopted the grounds contained in the body of the application; the contents of the supporting affidavit; and thereafter highlighted three [3] key issues. The issues are: The respondent was directed to remove the offensive gate within the stipulated timelines; the respondent has failed/neglected to comply with the court order; and the applicant is now desirous to implement the terms of the decree of the court. 11. In addition, learned counsel for the applicant has submitted that the implementation of clause [4] and [5] of the Judgment of the court, which was delivered on the 05.02.2026, cannot be realized without the provision of police security. In this regard, it has been submitted that the applicant has established sufficient basis to warrant the grant of the orders sought. 1. *In a nutshell*, learned counsel for the applicant has invited the court to find and hold that the application is meritorious. The court has been implored to grant the orders sought, so as to facilitate the enjoyment of the fruit of the judgment. 2. Learned counsel for the respondent has adopted the contents of the replying affidavit sworn on the 27.07.2026 and thereafter highlighted five [5] key issues. The issues are: The court is functus officio insofar as the respondents has since filed a notice of appeal; the intended appeal has overwhelming chances of success; the applicant has neither extracted nor served the statutory notice under **Section 152 E [2] of the Land Act**; the application before the court is premature; and the orders sought cannot issue as against the OCS Kula – Mawe Police Station. 1. Having reviewed the application; the supporting affidavit thereto; the replying affidavit in opposition thereto; and upon consideration of the oral submissions canvassed by /on behalf of the parties, two [2] emerge for determination. The issues are: Whether the applicant was enjoined to serve the statutory notice under **Section 152 E [2] of the Land Act** before implementation of the decree of the court; and whether the applicant has established sufficient basis to warrant issuance of the orders sought or otherwise. 2. Regarding the first issue, learned counsel for the respondent has submitted that the applicant herein ought to have extracted and served a statutory notice in terms of **Section 152E [2] of the Land Act, 2012 [2016]** before same can proceed to execute the evection orders, issued by the court on the 05.02.2026. Nevertheless, it has been submitted that insofar as the applicant has not issued the said notice, the subject application is premature and misconceived. 1. I am afraid that learned counsel for the respondent, has not properly internalized the legal import and tenor of the provisions of **Section 152 A – F of the Land Act, 2012 [2016]**. Furthermore, it is apparent that learned counsel for the respondent has conflated the eviction protocol established vide the said provisions and the process of eviction/demolition, arsing out of a lawful decree issued by a court of law. 2. It is common ground that the provisions of **Section 152A – F of the Land Act 2012 [2016],** were enacted to regulate the process of eviction, which was being undertaken without due regard to the due process of the law. In particular, the said provisions established that were a person was desirous to levy eviction, such a person was obligated to issue and serve the statutory notice on the party [read the trespasser] on the land. The recipient of the notice would then have an opportunity to oppose the eviction notice and where appropriate, to seek recourse before a court of law. 3. The purpose of the provisions of **Section 152 A -F of the Land Act, 2012 [2016],** was to avert the illegal and unlawful evictions, which had become common place and where third parties, including the Government of Kenya, would resort to arbitrary evictions. The bottom line was that the persons in occupation of the land and who are deemed to be trespassers, would be afforded due notice and opportunity to challenge the impending eviction. 4. However, the process/protocol underpinned by the provisions of Section 152 A – F of the Land Act, 2012 [2016], was not meant to defeat or insubordinate the lawful decree of a court of law. Where a party has procured a decree from a court of competent jurisdiction, for purposes of eviction, such a party is not called upon or obligated to serve the notice under **Section 152 E [2] of the Land Act, 2012 [2016]** in the manner posited by learned counsel for the respondent. 5. Assuming for the sake of arguments only, that the decree holder is obligated to issue a notice under section **152 E of the Land Act** and thereafter, the recipient of the notice seeks to approach a court of law, then it means that there would be a parallel case to be instituted. The scenario that would arise is the existence of two suits, the one where there is already a decree; and the subsequent one, filed in pursuance of the provisions of **Section 152 F of the Land Act, 2012 [2016].** 6. I dare say that such a scenario would create a legal absurdity. That is not what the provision of **152 A – F of the Land Act, 2012 [2016]** was meant to achieve. 7. I now wish to turn to the second issue. The second issue is whether the applicant has established a sufficient basis to warrant the issuance of the orders sought. To begin with, it is common ground that this court rendered a judgment on the 05.2.2026 and wherein the court directed the respondent to remove the offensive gate erected on a portion of plot number 1021 C – Kambi ya Juu. 8. Additionally, it is evident that the court prescribed the timeline of the removal. For the avoidance of doubt, the court directed that the gate be removed within thirty days from the date of the order. Furthermore, the court directed that in the event of default, the applicant was at liberty to remove the offensive gate. 9. The applicant is now before the court contending that the appellant has failed to comply with the terms of the decree. The applicant is now keen to invoke the liberty to remove the gate in accordance with clause [5] of the Judgment of the court. 10. I wish to state that court orders are meant to be complied with or obeyed. In addition, court orders cannot be merely disregarded with abandon. In any event, court orders are not ornamental. 11. In the case of **Teachers Service Commission v Kenya National Union of Teachers & 2 others [2013] KEELRC 656 (KLR) ,** the court [Per L Ndolo – Judge as then was] stated thus: ***“A court order is not a mere suggestion or an opinion or a point of view. It is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest of every person that this remains the case. To see it any other way is to open the door to chaos and anarchy and this Court will not be the one to open that door. If one is dissatisfied with an order of the court, the avenues for challenging it are also set out in the law. Defiance is not an option.”*** 1. The applicant herein is the beneficiary of the decree. The decree in question should count for something. It suffices to reiterate that a court order must be worth the paper on which the order is made. The court order cannot be ignored. 2. In circumstances, it is my finding that if the orders sought are not granted, then it means that the applicant will be holding a paper judgment, incapable of actualization. In my humble view, the applicant is entitled to the fruits of the judgment. 3. The enjoyment of the judgment and the consequential decree can only accrue, if the orders sought are granted. The application is meritorious. **Conclusion:** 1. The applicant herein has approached the court seeking an order for provision of security. The security sought is intended to facilitate the actualization of the terms of the decree. It suffices to state that this court owes it to the applicant to ensure that the judgment is enforced. 2. Consequently, the applicant has established sufficient basis to warrant the grant of the orders sought. It is in interest of justice that the orders be granted. **Final orders:** 1. Consequently, and in the premises, the final orders of the court are: 2. ***The Application dated the 20.07.2026 be and is hereby Allowed.*** 3. ***The OCS – Kula Mawe Police Station be and is hereby directed to provide reasonable security to the applicant or the applicant’s nominee to facilitate the removal of the offensive gate located on a portion of plot number 1021C – Kambi ya Juu.*** 4. ***The Applicant shall bear the costs/expenses/charges [if any] attendant to the provision of Security, in accordance with the applicable Government Scales.*** 5. ***The Respondent shall bear the costs of the application.*** 6. ***The costs in terms of clause [iv] shall be agreed upon and in default be taxed in the conventional manner.*** 7. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU ON 31ST DAY OF JULY, 2026.** **OGUTTU MBOYA; FCIArb; CPM [MTI-EA].** **JUDGE** In the presence of: Court Assistant: Zakayo /Mukami Mr. Mwirigi Mbaya for the Appellant/Applicant Ms. Odoyo holding brief for Mr. Kiogora Mugambi for the Respondent