https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4284

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **MISC. APPLICATION E002 OF 2026** **NANCY NASERIAN MOKOSIO** ................................................................. **1ST APPLICANT** **PATRICIA MOKOSIO TIMAIYO** .............................................................. **2ND APPLICANT** **STELLA SANANKA MOKOSIO** ................................................................ **3RD APPLICANT** **ANGELA MOLEEN SOIPEI** ....................................................................... **4TH APPLICANT** **WINNIE MOKOSIO** ..................................................................................... **5TH APPLICANT** **VS** **ANN WANJIKU SILAU MOKOOSIO** .................................................... **1ST RESPONDENT** **NATASHA SEMPEIYO SILAU** ............................................................... **2ND RESPONDENT** ### **RULING** ***(In respect of the Notice of Motion application dated 9th January 2026 seeking final eviction orders)*** **Introduction** 1. Before this Court for determination is a Notice of Motion application dated 9th January 2026, brought forth by the Applicants against the 1st and 2nd Respondents pursuant to Sections 1A, 1B, and 3A of the Civil Procedure Act, Sections 152A, 152B, 152E, 152F, and 152G of the Land Act No. 6 of 2012, Laws of Kenya, Regulation 65 of Legal Notice 280 of 2017 (Land Regulations) and Order 51 Rules 1 & 4 of the Civil Procedure Rules. 2. Through the said application, the Applicants seek the following orders: 3. THAT this Honourable Court be pleased to grant orders of eviction against the 1st and 2nd Respondents herein Ann Wanjiku Silau Mokoosio and Natasha Sempeiyo Silau respectively from the Applicants' Suit Property known as NGONG/NGONG/56885 and to deliver vacant possession to the Applicants. 4. THAT this Honourable Court be pleased to grant orders to Beafect Auctioneers and or Court Bailiffs to conduct the eviction exercise and in satisfaction of the orders granted herein. 5. THAT the Officer Commanding Police Station (OCS), Ngong Police Station be ordered to offer and or provide security during eviction and to maintain law and order. 6. THAT the costs of this Application be borne by the Respondents. 7. The application is premised on the grounds set out on the face of the Motion and is further supported by the Affidavit of the 1st Applicant, Nancy Naserian Mokosio. The Applicants assert that they are the absolute registered owners of the suit property, NGONG/NGONG/56885. They contend that the Respondents have unlawfully deprived them of access and possession of the suit property. This continued occupation is allegedly in breach of a family agreement, particularly because the Applicants had already handed over the original title deed for an alternative parcel of land, NGONG/NGONG/56891, to facilitate the Respondents' relocation. 8. The Applicants maintain that they have fully exhausted the statutory prerequisites for eviction under the Land Act and Land Regulations. A mandatory three (3) months’ Statutory Notice to Vacate, dated 15th May 2025, was issued and served upon the Respondents pursuant to Section 152E of the Land Act. The said notice lapsed on 13th August 2025. The Respondents have failed to vacate the premises or file any formal objection opposing the intended eviction. 9. The supporting affidavit expounds that the Notice to Vacate and Demand Letter were served both physically and electronically via the WhatsApp mobile application. The statutory service was effectuated by an Advocate, Ms. Joyce Wangui, and a Court Process Server, Ms. Faith Mwihaki. Furthermore, the notices were also served upon the Deputy County Commissioner of Kajiado North Sub-County and the Officer Commanding Police Division (OCPD) of Ngong Division. 10. The Applicants aver that the Respondents' persistent and unauthorized occupation of the suit property subsequent to the lapse of the statutory notice crystallizes into the criminal offense of forcible detainer, as stipulated under Section 91 of the Penal Code. 11. The Applicants express grave apprehension that the Respondents might deal with the suit property in a manner calculated to defeat the Applicants’ proprietary interests. They urge the Court to intervene urgently, arguing that the continued unlawful occupation poses a severe risk to their constitutional rights to property, and that the resulting prejudice cannot be adequately remedied by an award of monetary compensation. 12. In response to the Application, the Respondents rely on the Replying Affidavit sworn by the 1st Respondent, Ann Wanjiku Silau Mokoosio, on 23rd February 2026. 13. The Respondents aver that the suit property, NGONG/NGONG/56885, originated from the subdivision of parcel NGONG/NGONG/56133, which was jointly registered to the late Racheal Wanjiku Mokosio and the late Nicholas Silau Mokosio. They allege that the 1st Applicant fraudulently registered the suit property in the Applicants' names on 5th June 2014, circumventing mandatory succession proceedings for the late Nicholas Silau Mokosio's estate. 14. The Respondents state that they have continuously resided on the suit property. They assert that they were entirely excluded as beneficiaries in Succession Cause No. 1645 of 2014 and that the belated issuance of title deed NGONG/NGONG/56891 to the 1st Respondent in 2022 is a malicious mechanism to disinherit them. 15. Conversely, the Applicants filed a Further Affidavit sworn by the 1st Applicant on 8th March 2026, joining issue with the Respondents. 16. The Applicants contend that the Respondents unequivocally admitted service of the Statutory Notice to Vacate dated 15th May 2025 and failed to formally challenge it before its lapse. 17. The Applicants clarify that the subdivision of NGONG/NGONG/56133 into ten parcels was registered on 8th May 2012, preceding the deaths of Racheal Wanjiku Mokosio and Nicholas Silau Mokosio. Consequently, the suit property did not form part of the deceased's estate. 18. The Applicants aver that the late Nicholas Silau Mokosio held the property in trust for the wider family. The alternative parcel, NGONG/NGONG/56891, was allocated to the 1st Respondent in trust for herself and the 2nd Respondent. Furthermore, Nicholas Silau Mokosio's other children successfully took possession of their respective allocated parcels without contestation. 19. The Applicants maintain that the Respondents actively participated in Succession Cause No. 1645 of 2014, executing the Consent for Confirmation of Grant and physically attending the confirmation hearing before A.O. Muchelule J (as he then was) on 6th February 2017. **Directions** 1. The application was canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this ruling. **Issues for determination** 1. Having critically considered the application before the court, the response by the Respondents and the rival submissions by the parties; one prominent issue that arises for determination is whether a miscellaneous application is the appropriate way of moving the court for the final and substantive orders of eviction. **Analysis and determination** 1. The Respondents in their submissions on the issue have made reference to section 19 of the Civil Procedure Act that provides that every suit shall be instituted in such manner as may be prescribed by the rules. That rule, according to the Respondents is rule 1 of Order 3 of the Civil Procedure Rules. They further cite a number of decisions to support the argument that it is improper for the Applicants to institute eviction proceedings by way of a miscellaneous application. 2. Amongst the decisions referred to by the Respondents is the decision of this court in the case of ***Kenya Assemblies of God Trustees & another –versus- Obuya & 4 others (Miscellaneous application) E014 of 2023 {2023} KEELC 15817 (KLR) (23 February 2023) (Ruling)***, where this court in determining a similar application opined that, ***“Eviction of people, be they squatters or not, is a weighty matter that actually touches on their human rights. The court before issuing any such orders as sought by the Applicant, needs to make an elaborate enquiry whether the Applicants have met the conditions spelt out in Section 152E of the Land Act. Whether indeed or so called squatters are actually occupying the land and whether they are unlawful occupants, if at all. The miscellaneous application does not afford such an opportunity neither does it allow the parties allow the parties the chance to canvass those issues and exercise their rights to a fair hearing. It is an attempt to summarily determine the issues without a proper trial.”*** 1. The Respondents in their replying affidavit sworn by one Ann Wanjiku Silau Mokosio on 23rd February 2026, allege fraud on the part of the Applicants through circumvention of the succession proceedings with respect to the Estate of the Late Nicholas Silau Mokosio (deceased). They too state that they have continuously resided on the suit property, insinuating on trust or adverse possession. 2. The issues raised by the Respondents necessitate a full hearing. It is trite that allegations of fraud must not only be pleaded but must be strictly proved on a standard higher than a balance of probabilities. That cannot obviously be possible in a miscellaneous application. Entertaining the proceedings for substantive and orders of eviction will automatically deny the Respondents the opportunity to advance their defence, denying them the right to a fair trial. 3. Similar findings were made in the case of ***Rockfield Kenya Ltd -vs-Commissioner General of KRA & Another (2020) eKLR , Witmore Investments Ltd -vs- County Government of Kirinyaga & 3 others (2016) eKLR & Nairobi West Hospital Ltd –vs-Joseph Karina & another (2018) eKLR***. 4. Recently, in the case of ***Ng’eny -vs-Kiarie & 2 others (Miscellaneous Application E056 of 2025) {2026} KEELC 54 (KLR) (21 January 2026 (Ruling)*** M.A.Odeny J made a similar finding citing with approval the decision by Munyao J (as he then was) in ***Tatecoh Housing and Cooperative Sacco Ltd -vs- Qwetu Sacco Ltd,*** where the court emphatically stated that, ***“Without much ado, I will agree with the position of the Respondent, as raised in the preliminary objection and buttressed by Mr. Muthami in his submissions, that the applicant cannot seek the orders sought in its miscellaneous application without going through the process of filing suit. It will be observed that among the orders sought in the motion are orders of eviction. One will ordinarily only obtain an order of eviction after full hearing of a case. What the applicant needed to do was therefore to file a substantive suit for eviction through a plaint. It is upon hearing of such a suit and if successful that an order of eviction will issue.”*** 1. I fully associate with the above cited decisions. I therefore find and hold that the substantive and final orders sought by the Applicants herein cannot be issued in a miscellaneous application. To avoid the risk of prejudicing the parties’ cases, should they opt to file suit as prescribed under Order 3rule 1 of the Civil Procedure Rules, I will refrain from going into the merits of the application. 2. Consequently, I strike out the Notice of Motion application dated 9th January 2026 with costs to the Respondents. It is so ordered. **Dated, Signed and Delivered Virtually at Kajiado this 9th Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Mr. Oguye h/b for Mr. Kimani for the Applicants N/A by the Respondents Court Assistant: Alex **M.D. MWANGI** **JUDGE**