https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3659

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC LAND MISC. CASE NO. E044 OF 2025** **PETER MBITHUKA KIVUI…..……………………...…….……..1ST APPLICANT** **NICHOLAS NGEI MBITHUKA…………………………………2ND APPLICANT** **VERSUS** **FAITH NZULA ENEA………….………………………….......... RESPONDENT** **RULING** 1. Before this court for determination is the applicants’ notice of motion dated 7 May 2025, moved pursuant to the provisions of **Sections 152A, 152B, 152E** and **152F** of the **Land Act,** **Section 3A** of the **Civil Procedure Act,** and all enabling provisions of the law. The applicants seek the following orders from this court: 2. ***Spent.*** 3. ***THAT the honourable court be pleased to issue orders of eviction of the respondent from all that parcel of land known as PLOT NO. 5/364 KATHEKA KAI (VOTA)(hereinafter known as the suit property) and for vacant possession of the property to be delivered to the applicants.*** 4. ***THAT EASTERN KENYA AUCTIONEERS do effect and execute the above eviction orders.*** 5. ***THAT the Officer Commanding Station (O.C.S) Machakos Police Station, do supervise the eviction.*** 6. ***THAT the costs of this application be in the suit.*** 7. The motion is based on the grounds set out on its face and on the 1st applicant’s supporting affidavit, sworn on the instant date. A summary of the grounds supporting the motion is that the applicants are the legal administrators of the estate of Agnes Wayua Nzuma (Agnes), the owner of plot **No. 5/364 Katheka Kai-Vota (suit property).** 8. They allege that the respondent has unlawfully taken possession of the land, developed it, and ignored both correspondence filed with the authorities and a formal eviction notice. Previous court cases challenging the applicants’ ownership have been dismissed. Despite the expiry of the eviction notice period and notifications to local authorities, the respondent remains on the suit property and has not contested the eviction. The applicants claim this ongoing occupation deprives them of their constitutional right to own and enjoy the suit property. 9. Further, the statutory 90-day notice period has expired, and the respondent has not challenged the eviction in court. As a result, the applicants’ right to evict the respondent is now established, and the court’s intervention is sought to authorise the eviction. 10. When served, the respondent opposed the motion by filing her replying affidavit, sworn on 4 February 2026, in which she concisely asserts that her father, Philip Enea Kiilu, purchased the suit property on her behalf from Samuel Mwindi Wambua on 21 August 1999, with full payment made. Upon completion of the purchase, she took possession of and cultivated the suit property, and the original owner was Kalekye Nzuma. She states that the applicants are not the owners of the suit property, as reflected in the minutes of the Katheka-Kai Farmers Co-operative Society Ltd meeting held on 5 December 2024, which confirmed that Kalekye Nzuma was the lawful member. She maintains that she is the owner of the suit property and that the applicants lack any legal basis to seek eviction. 11. As directed by the court, the motion is canvassed by written submissions. The submissions of **Ms. B. M Mungata & Co. Advocates** for the applicants are dated 24 April 2026. As for the respondent, her submissions are filed by **Ms. Mutia J. M & Associates,** dated 28 April 2026. Accordingly, having thoroughly examined the motion, grounds, affidavits, annexures, and rival submissions, the distilled issue for determination is **whether the motion meets the legal threshold to warrant the issuance of eviction orders.** We proceed. 12. Regarding the eviction process as moved by the applicants, the **Land Laws (Amendment) Act 2016**, which became law following the Presidential Assent on 31 August 2016, introduced significant reforms to the country's eviction policies. Notably, the **Act** established a detailed procedure for evicting individuals found to be unlawfully occupying public, community, or private land. This law was enacted following the decision of **Mitu-Bell Welfare Society v Attorney General & 2 others [2013] KEHC 6337 (KLR)** where the learned Judge **Mumbi Ngugi J** *(as she then was)* stated as follows: - ***“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 “The right to adequate housing (Art.11.1): forced evictions:. (20/05/97) CESCR General comment 7. (General Comments).”*** 1. Having outlined the genesis of our laws on eviction, and since the applicants are contending that the suit property is private land, the pertinent law is found in our **Section 152E** of the **Land Act,** which provides for the following extensive legal process in seeking an eviction of a trespasser occupying 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 on that person 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; and*** ***(d)be served on the deputy county commissioner in charge of the area as well as the officer commanding the police division of the area.”*** 1. Additionally, as to the format of such a notice to vacate, **Regulation 65** of **Legal Notice No. 280 of 2017 (Land Regulations)** provides as follows: ***“Upon establishing that a particular parcel of private land is unlawfully occupied, the owner of the land shall issue a notice in Form LA 57 set out in the Third Schedule to the unlawful occupiers to vacate the land.”*** 1. By it, the notice duly lists the names of the individuals allegedly occupying the land unlawfully, along with their national identity card details, postal and physical addresses, and particulars of the land in question. It warrants that the individual (s) refrain from any further activities on the land, requires the removal of structures, crops, and animals, and mandates that the individual vacate the premises within three months. Failure to comply will result in eviction proceedings. The landowner signs the notice, and a copy is forwarded to the Deputy County Commissioner and the Officer Commanding Police Station (OCPD) of the area where the land is located. 2. Courts have consistently affirmed that these legal procedures must be adhered to without circumvention. In a recent decision with which this court aligns itself, the Court of Appeal in **Kenya Railways Corporation v Birah & 14 others [2025] KECA 545 (KLR)** underscored this position when it stated: - ***“In any eviction, forcible or otherwise, adequate and reasonable notice should be given. Respect for human rights, fairness, and dignity in carrying out the eviction should be observed, and the constitutional and statutory provisions on fair administrative action must be adhered to.”*** 1. This court has thoroughly examined the documents submitted in support of the motion. While the applicants have presented a letter of allotment over the suit property from Katheka Kai Farmers Co-operative Ltd in the name of Agnes dated 8 December 2020, along with a membership card, members register, and probate proceedings indicating distribution of the suit property from her estate, there is no evidence that any notice was issued in compliance with **Section 152E** of the **Land Act**, as the respondent's national identity card details, postal, and physical addresses have not been disclosed. Moreover, upon consideration of the return of service executed by Alex Wambua Muthenya on 13 May 2025, it is apparent that the respondent was not served; instead, a Lennah Kioko, a stranger to these proceedings, was served. Accordingly, the court finds that the eviction notice fails to satisfy the requisite legal threshold and concludes that the respondent was never properly served. 2. Furthermore, respecting eviction notices as prescribed under the **Land Act** and its relationship with adhering to the proper procedural steps for initiating court proceedings in contentious matters, it is now established law that in disputes concerning ownership and rights of occupancy, a person claiming trespass against an individual purportedly occupying the property in contention must resort to filing a substantive suit in court. Jurisprudence is replete with this, and the court aligns itself with the following decisions. In **Julius L Marten v Caleb Arap Rotich [2021] KEELC 195 (KLR), the court held:-** ***“15. From a reading of sections 152C, 152D and 152E of the Land Act, 2012 it is not clear how a party ought to approach the court for relief under section 152F. Is it by way of a formal suit and/or miscellaneous application as in the instant suit? Any eviction order has far reaching implications as it entails the removal forcefully of a party from land that he/she has been in occupation/possession of for some time. Before such an order is given the court must be satisfied on its merits which means any person who stands to be affected by any order the court may make is entitled to be heard. Section 152E relating to private land envisages that there is no dispute on ownership and the occupation is unlawful. What is the situation where there is no dispute on ownership and the occupation is unlawful? What is the situation where there is disputed ownership of the property? In my view where the ownership is disputed the summary procedure that section 152F appears to contemplate would not be suitable and a formal suit would be advisable.”*** 1. A similar position was taken in **Ogoi v Mogoi [2022] KEELC 12813 (KLR),** where a respondent was contending ownership and the court held: - ***“That being the case, the fact that the applicant issued to the respondent an eviction notice can only be used as evidence during the prosecution of a substantive suit. The same cannot be an avenue for a party to file a miscellaneous application to avoid the rigours of an oral hearing.”*** 1. In the present case, although the applicants purportedly possess ownership documents from Katheka-Kai Farmers Co-operative Society Ltd, the respondent allegedly holds documents from the same society asserting that the suit property belonged to Kalekye Nzuma as the original owner, and not to Agnes. The court is uncertain regarding the relationship between Samuel Mwindi Wambua, from whom the respondent claims to have purchased the suit property, and Kalekye Nzuma. However, it is evident that the estate of Samuel Mwindi Wambua, the Katheka-Kai Farmers Co-operative Society Ltd, and the applicants have been involved in disputes which have been dismissed or struck out for lack of jurisdiction, without a determination on the merits, as exemplified by **Machakos CM ELC LAND CASE NUMBER E038 OF 2020** and **ELC LC CASE NO. 40 OF 2023**. Accordingly, this court finds that the matters in dispute are contentious and that they can only be properly resolved through a substantive suit. 1. Guided by the law and prevailing jurisprudence, and for the reasons and findings stated above, this court finds that the notice of motion dated 7 May 2025 is not merited and is struck out. As costs follow the event, the respondent shall have the costs of the motion. The file is marked as closed. Orders accordingly. **Delivered and Dated at Machakos this 16th day of June, 2026.** **HON. A. Y. KOROSS** **JUDGE** **16.06.2026** **Ruling delivered virtually through Microsoft Teams Video Conferencing Platform** In the presence of; Ms. Kanja Court Assistant. Miss Ngumbau for Mr. Mutie for respondent. Mr. Kivui for Mr. Muema for applicant.