https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4394

Awori (Suing as the Administrator of the Estate of Horace Osinya Awori) v Station & 12 others (Environment and Land Case 124 of 2013) [2026] KEELC 4394 (KLR) (7 July 2026) (Ruling) Neutral citation: [2026] KEELC 4394 (KLR) Republic of Kenya In the Environment and Land Court at Busia Environment and Land Case 124 of 2013 L Waithaka, J July 7, 2026 Between Michael Horace Awori (Suing as the Administrator of the Estate of Horace Osinya Awori) Applicant and OCS Nambale Police Station 1st Respondent Busia County Security Intelligence Committee 2nd Respondent and Dickson Minya Amukowa 1st Interested Party Seferio Okello Nandwa 2nd Interested Party James M Kariuki 3rd Interested Party Pius Pamba Okumu 4th Interested Party Macartur Zacharia 5th Interested Party Nicholas Odouri Odeko 6th Interested Party Martin Apolo Otieno 7th Interested Party Elizabeth Anyango Okumu 8th Interested Party Pascal N Wesonga 9th Interested Party Francis Balongo 10th Interested Party Francis Lunani 11th Interested Party Ruling 1.Vide a notice of motion (application) dated 1st August 2025, the applicant herein seeks the following orders against the respondents: -a.Spentb.That the directive issued on 5th January 2022 by the Principal Secretary Interior be dispensed with in the instant execution and/orc.That the OCS Nambale Police station and Busia County Security and Intelligence Committee Show Cause why the directive must be adhered to after Covid emergencies were lifted.d.That cost of the application be provided for. 2.The application is expressed to be brought under Section 3, 3A, 38 of the Civil Procedure Act and Order 42 Rule 6(1) of the Civil Procedure Rules. 3.The application is premised on the grounds that the security apparatus (read the 1st and 2nd respondents herein) have declined to execute (read facilitate execution) of an order of the Court issued in favour of the applicant; that the decree holder is prohibited from enjoying fruits of his judgment; that the internal directive should facilitate and not frustrate an order of Court; that the Covid epidemic has long been contained and that a Court order should not be impeded by extraneous actors. 4.The application is supported by the affidavit of the applicant, sworn on 1st August 2025, in which the applicant has annexed the following documents: -i.A decree issued in this suit on 17th September, 2017 requiring the interested parties herein to surrender vacant possession of all that parcel of land known as L.R Bukhayo/Kisoko/1322 within 90 days, from 5th October, 2020. In the event the interested parties failed to heed the order/decree of the Court, the applicant was at liberty to carry out eviction of the interested parties from the suit property at their cost; marked as EJ-1;ii.Order issued in this suit on 23rd June 2021 requiring the 1st respondent herein, O.C.S Nambale Police Station, to provide security during eviction of the respondents from the suit property, marked as EJ-2(a);iii.Eviction order issued in this suit on 17th September 2021, marked as EJ-2b, authorizing the OCS/Officer in charge of Nambale Police Station to arrange for such reasonable force as may be deemed necessary to meet any resistance at the time of effecting the eviction order;iv.Letter from the OCS Nambale Police Station to the S.C.P.C Nambale Sub County, dated 11th May 2022 forwarding the Court order and seeking approval for execution; marked EJ3;v.Letter/circular from the Principal Secretary, Ministry of Interior and Citizen Services, dated 5th January 2022 giving guidelines on how eviction from public and private land and property would be conducted, marked EJ-4. 5.In reply to the application, the respondents filed an affidavit, replying, sworn by Julius Lekariap, the Officer Commanding Nambale Police Station, in which through the said officer, they have deponed as follows: -“…………………3.I am aware that my predecessor OCS one Sammy Kamau was served with court orders of eviction against the interested parties, who in his replying affidavit sworn on 8th July 2022 did explain the progress he had made in having the eviction orders to be implemented by the OCS Nambale Police Station, the 1st Respondent;4.That as the officer Commanding Police Station (OCS) Nambale I have not refused to obey the Court Orders issued on 23/06/2021 which required us to provide security for eviction of the interested parties.5.That as earlier explained by my predecessor through his replying affidavit sworn on 8/07/2022, there are procedures to be followed before an eviction order is effected and the same are contained in the guidelines by the Principal Secretary State Department for Interior and Citizen Services dated 5th January 2022 and which guidelines were never issued during Covid emergencies as alleged by the applicant…6.That as an office we have complied with step to step procedures for eviction as provided for in the guidelines save for the written approval by the County Security Intelligence Committee.7.That as an office we have done all that is within our authority to seek the said approval in compliance with the court orders issued by this Honourable Court and we have not in any way disobeyed the Court orders.8.I am advised by my counsel on record, which advice I verily belief to be correct, that all court ordered eviction must be guided by the provisions of section 152G of the Land Act, which provide that any action for eviction must be preceded by the presentation of formal authorization for the action and in our case an approval by the County Security Intelligence Committee.9.That the guidelines for eviction orders cannot be ignored as the same are necessary to respect and safeguard the physical, emotional and psychological wellbeing of the persons that are to be displaced as per the Court ordered eviction.10….” 6.The interested parties did not file a response to the application. 7.Pursuant to directions given on 11th March 2026, the application was disposed of by way of written submissions. 8.Despite having been afforded opportunity to file submissions, the respondents did not file their submissions, within the time given by the court and at all. 9.In his submissions filed on 22nd April 2026, the applicant has submitted/addressed the Court as follows:“…The applicant believes that it is inordinate to fail to execute a decree for a period of 5 years.The applicant further believes the police are abusing the process by sitting on an administrative decision for over 5 years.” 10.The applicant makes reference to the decision in Nairobi HC Judicial Review No. 479 of 2018 and, in respect of the instant application submits as follows: -“The Court has issued a legal order directed to the OCS…There is a duty…to ensure proprietary rights are upheld.The applicants have satisfied all conditions precedent. i.e supplied decree and order to the OCS. The demand to the Police was made way back in 2022. It has been over 5 years by Police Inaction.” 11.The applicant implores the court to execute its inherent power and ensure its orders are adhered to strictly and not frustrated by the police. 12.I have read and considered the circumstances leading to filing of the instant application, alleged inaction, refusal and/or failure to execute a decree and court orders issued in favour of the applicant and the explanation offered by the respondent for the delay or failure to facilitate the decree and/or orders issued by this Court. I have also read the applicable law, particularly Section 152G of the Land Act, Article 47 of the Constitution and the Statute enacted to give effect to Article 47 of the Constitution, namely the Fair Administrative Actions Act, 2015. 13.Section 152G of the Land Act, 2012 (which was introduced to the Land Act, through the Land Laws (Amendment) Act, 2016) provides as follows, concerning evictions: -“(1)notwithstanding any provisions to the contrary in this Act or in any other written law, all evictions shall be carried in strict accordance with the following procedures: -a.Be preceded by the proper identification of those taking part in the eviction or demolitions;b.Be preceded by the presentation of formal authorization for the action;c.Where groups of people are involved, government officials or their representatives to be present during an eviction;d.Be carried out in a manner that respects the dignity, right to life and security of those affected;e.Include special measures to ensure effective protection to groups and people who are vulnerable such as women, children, the elderly and persons with disabilities;f.Include special measures to ensure that no arbitrary deprivation of property or possessions as a result of the eviction;g.Include mechanisms to protect property and possessions left behind involuntary from destruction;h.Respect the principles of necessity and proportionality during the use of force; andi.Give the affected persons the first priority to demolish and salvage their property.” 14.Subsection (2) of Section 152G, puts an obligation on the Cabinet Secretary for Lands to prescribe regulations to give effect to the section. In that regard, see Section 2 of the Land Act as read with the said subsection 152G of the Land Act, which, respectively provides as follows:“....“Cabinet Secretary” means the Cabinet Secretary responsible for matters relating to land;“The Cabinet Secretary shall prescribe regulations to give effect to this Section”. 15.Citing an internal circular issued by the Principal Secretary (PS), State Department for Interior and Citizen Services, which gave the following guides for carrying out evictions, and citing lack of approval/authorization by their supervisions to carry out a court sanction eviction, the respondent contend that the requirement of presentation of formal authorization for eviction, required under Section 152G(1)(b) cited herein above is the authorization contemplated in guidelines issued by the Principal Secretary for State Department for Interior and Citizen Services. 16.In addressing the claim by the respondents that the formal authorization required under Section 152G (1)(b) above is the one contemplated in the circular by the PS Interior dated 5th January 2022, I have read and considered the provisions of Section 152G, particularly, Section 152G subsection 2 thereof as read with Section 2 of the Land Act, which give power to the Cabinet Secretary to make regulations to give effect to the section and not the PS for Interior. 17.Based on the fact that the PS Interior is not the one given power to make regulations under Section 152G (2), and cognizance of the fact that a purpose interpretation of the circular in the manner claimed by the respondents would give the Cabinet Secretary power to override a valid eviction order issued by the Court, I refuse to buy the claim by the respondents that they require authorization by their supervisors, to effect a lawful Court order. 18.My reading of Section 152G (1)(b) as relates to formal authorizations in evictions being carried out pursuant to a Court order, is the verified order of Court, authorizing evictions and not any authorization from any other quarter. 19.The affidavit evidence attached to the applicant’s affidavit, when considered together with the averments contained in the replying affidavit sworn in reply to the instant applications, shows that the applicants did all what they were supposed to do, that is, obtained requisite authorizations from Court for the interested parties to be evicted from the suit property. Neither the respondents nor the interested parties have given any valid reason or justification why the evictions ordered by the Court should not proceed as ordered. 20.Under Article 47 of the Constitution of Kenya as read with Section 4(1) of the Fair Administrative Actions Act, 2015, every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair. 21.The delay of over 5 years in facilitating execution of the decree and order issued in favour of the applicant, in the circumstances of this case, is not only inordinate but also not properly accounted for. In the circumstances, I find and hold that the applicant has made up a case for being granted the orders sought in the notice of motion dated 1st August 2025, which orders I hereby grant him as follows: -i.The directive issued on 5th January 2022 by the Principal Secretary Interior giving guidelines on conduct of evictions, be and is hereby dispensed with in the instant execution;ii.I make no order as to costs. 22.I direct the 1st and the 2nd respondent to, within 60 days from the date of delivery of this ruling, to make the necessary arrangements to ensure that the eviction orders issued by the Court in favour of the applicants are enforced. 23.I also direct the applicant, through the Area Assistant Chief of the sub location where the suit property is located, to serve or cause to be served upon the interested parties, the order issued herein as a way of notifying them of the impending forceful eviction. 24.Orders accordingly. RULING DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 7TH DAY OF JULY, 2026 THROUGH MICROSOFT TEAMSL. N. WAITHAKAJUDGEIn the presence of: -Mr Jumba for the Applicant/ Decree holderMr. Juma holding brief for Mr. Tarus for the RespondentsCourt Assistant: Bedan