Muasya v Kioko (Environment and Land Miscellaneous Case E027 of 2025) [2026] KEELC 4703 (KLR) (23 July 2026) (Ruling)

Muasya v Kioko (Environment and Land Miscellaneous Case E027 of 2025) [2026] KEELC 4703 (KLR) (23 July 2026) (Ruling) Neutral citation: [2026] KEELC 4703 (KLR) Republic of Kenya In the Environment and Land Court at Makueni Environment and Land Miscellaneous Case E027 of 2025 EO Obaga, J July 23, 2026 Between Mbwele Muoki Muasya Applicant and Justus Mutie Kioko Respondent Ruling 1.Before this Court for determination is the Notice of Motion dated 2nd September, 2025. It is brought under the provisions of Sections 152A, 152B, 152E and 152(2)(a) of the Land Act, 2012 in addition to Section 2A, 3 and 3A of the Civil Procedure Act. 2.The Applicant seeks the following orders: -1.That an order of eviction and demolition of unauthorized structures does issue against the 1st Respondent herein Justus Mutie Kioko from his occupation of the whole of the land, being LR No. MAKUENI/UNOA/58 in the name of the Applicant herein, Mbweke Muoki Muasya and Ndemesi Muoki (Deceased).2.That an order does further issue that the Sub-County Police Commander (formerly Officer Commanding Police Division) Wote does provide security to oversee and supervise the eviction and demolition exercise.3.That the costs of this application together with the costs of eviction and demolition be borne by the 1st Respondent.4.THAT costs be in the cause. 3.The application is premised on grounds appearing on its face. It is also supported by the affidavit of Mbwele Muoki Muasya sworn on even date. The deponent averred that he is the registered owner of land Parcel No. MAKUENI/UNOA/58. That the land is jointly registered in his name and that of his stepson, Ndemesi Muoki (Deceased) in trust for other beneficiaries. 4.It was contended that the Respondent entered the land in the year 1984 under the pretext of having purchased the land from some of the beneficiaries. That vide land D.T. Case No. 8 of 2000, the Respondent was informed that the land does not belong to him yet he refused to move. That vide Machakos HCCC No. 60 of 2010, judgment was issued for the Respondent’s eviction in the Applicant’s favour on 4th May, 2018 by Justice O.A. Angote. An appeal against the judgment of Justice O.A. Angote by the Respondent vide Civil Appeal No. 366 of 2018 was also dismissed by the Court of Appeal on 23rd February, 2024. 5.The deponent averred that vide a letter dated 29th May, 2025 an eviction notice was served upon the Respondent together with the Officer Commanding Station Wote Police Station and the Deputy County Commissioner Makueni Sub-County. It was contended that the continued unlawful occupation of the land by the Respondent has rendered the beneficiaries destitutes with no land to call their own. The deponent urged the court to allow the application as sought. 6.Opposing the application, the Respondent filed a replying affidavit sworn by himself on 16th February, 2026. He averred that he is not in actual possession of the land in question being Parcel No. MAKUENI/UNOA/58. He further averred that he vacated the land and that to the best of his knowledge, it is one Nzilani Muoki who is in possession of the land. 7.The application was canvassed by way of written submissions. In the Applicant’s submissions dated 13th April, 2026, Counsel submitted that the substantive suit seeking prayers for eviction of the Respondent was heard and determined by Justice O.A. Angote and the subsequent appeal by the Respondent dismissed. It was further submitted that that the eviction notice that had been issued to the Respondent was in compliance with Section 152 E of the Land Act. 8.Counsel contended the Respondent’s assertion that a new substantive suit ought to be filed would simply lead to a defence of res judicata. It was further contended that the present application is for the enforcement of the judgment in accordance with the provisions of the Land Act. 9.The Respondent filed his submissions dated 2nd April, 2026. On his behalf, Counsel submitted that the Applicant cannot seek eviction orders which are substantive through a miscellaneous application. Counsel further submitted that the Respondent is not in possession of the subject land and thus the orders sought are nugatory. It was urged that the court should decline the orders sought in line with the provisions of Section 152 (F) of the Land Act, 2012. Counsel urged the court to dismiss the application with costs. 10.Having perused the application and the exhibits in support thereof, it is not in doubt that vide Machakos ELCC No. 60 of 2010, judgment was delivered in favour of the Applicant on 4th May, 2018 as evidenced by Exhibit “MM6”. At paragraph 11 thereof, the court issued an order of permanent injunction against the Respondent. The said judgment was appealed by the Respondent vide Nairobi Civil Appeal No. 366 of 2018 and dismissed vide the judgment dated 23rd February, 2024 as evidenced by Exhibit “MM9”. 11.It is not in question that the Applicant is entitled to the fruits of her judgment and that the application herein seeks to give effect to the final decree of the Environment and Land Court in Machakos. 12.Section 2 of the Civil Procedure Act defines a decree as follows: -“decree” means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final; it includes the striking out of a plaint and the determination of any question within section 34 or section 91… 13.This Court is vested with the inherent jurisdiction to make such orders as to further the overriding objective to ensure that the ends of justice are accomplished. The Respondent did not avail evidence of having vacated the land as alleged in his replying affidavit. There is no justification for the Respondent to remain in the suit property and no prejudice will be occasioned on the Respondent if the application is granted. Litigation must come to an end. 14.In Samvir Trustee Limited V Guardian Bank Limited [2007] eKLR Warsame J. (as he then was) aptly held as follows:-“It is a fundamental factor to bear in mind that, a successful party is prima facie entitled to the fruits of his judgement, hence the consequence of a judgement is that it has defined the rights of a party with definitive conclusion. The respondent is asserting that matured right against the applicant/defendant.” 15.In the result, the application is merited and it is granted as prayed. ………………………….HON. E. O. OBAGA, FCIArbJUDGERULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 23RD DAY OF JULY, 2026.In the presence of:Mr. Mutua for ApplicantCourt assistants – Kilonzo & Musyoki