https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3821

M’rinkanya & another v Kithima Farmers Co-operative Society Ltd (Enviromental and Land Originating Summons E016 of 2025) [2026] KEELC 3821 (KLR) (15 June 2026) (Ruling) Neutral citation: [2026] KEELC 3821 (KLR) Republic of Kenya In the Environment and Land Court at Meru Enviromental and Land Originating Summons E016 of 2025 JO Mboya, J June 15, 2026 Between George Kiunga M’rinkanya 1st Plaintiff Earnest Kirimi M’Rinkanya 2nd Plaintiff and Kithima Farmers Co-operative Society Limited Defendant Ruling 1.Before me is the Notice of Motion Application dated the 12.05.2026; brought pursuant to the provisions of Sections 1A, 3, and 3 A of the Civil Procedure Act, Chapter 21 Laws of Kenya, and wherein the defendant/Applicant [hereinafter referred to as the Applicant] has sought the following reliefs:I.That this application be certified urgent and be heard on priority basis.II.That the this Honourable court be pleased to issue an order for eviction of the Plaintiffs/Respondents or anybody acting on their behest from the suitland L R No. Abothuguchi/Gitie/437.III.That the OCS Mujwa Police Station do provide security during the eviction.IV.That the cost of the application be provided for. 2.The instant Application is premised on various grounds which have been enumerated in the body thereof. The grounds are: The respondents filed/instituted the subject suit vide originating summons; the respondents sought to be declared as having acquired ownership of the suit property vide adverse possession; the respondents’ suit was heard and dismissed; thereafter the Applicant extracted the decree of the court; the decree of the court has since been served upon the respondents; the respondents have failed/declined to vacate the suit property; the respondents have proceeded to and demolished the fence separating their property and the suit property; and the Applicant is entitled to vacant possession of the suit property. 3.Additionally, the Applicant has posited thus: The suit property belongs to the Applicant; the Applicant is a public utility body; the Applicant is desirous to reopen/resume the processing of coffee berries; the Applicant has been prevented from accessing and taking possession of the suit property. Moreover, it has been averred that the actions by/on behalf of the respondents constitutes a violation of the Applicant’s rights to the suit property. 4.The Application is supported by the affidavit of Zabelio Kaburu sworn on the 12.05.2026 and wherein the deponent has reiterated the contents of the grounds highlighted in the body of the application. In particular, the deponent has averred that the suit property lawfully belongs to the Applicant; the Applicant is desirous to resume the processing of coffee berries; the Applicant has been prevented from accessing the suit property; and the Applicant is entitled to the orders of eviction. 5.The application was duly served upon the plaintiffs’ /respondents’, but the respondents did not file any response to the application. Furthermore, when the application came up for hearing, learned counsel for the respondents confirmed that same had been duly served. Nevertheless, learned counsel sought for an adjournment to be able to file and serve a response to the application. Suffice it to state that the application for adjournment was declined. Thereafter, the court directed that the application does proceed for hearing. 6.Learned counsel for the Applicant adopted the grounds contained in the body of the application; reiterated the contents of the supporting affidavit; and thereafter highlighted four [4] key issues. The issues are: the honourable court heard and determined the suit that was filed by on behalf of the respondents; the court has since determined all the issues pertaining to and concerning ownership of the suit property; the respondents have declined to vacate the suit property; and the court is seized of the inherent jurisdiction to grant the orders sought. 7.Learned counsel for the respondent sought leave of the court to canvass legal issues. The court proceeded and indeed granted leave to counsel to canvass legal issues, taking into account that the respondents had not filed any response to the application in the manner provided for vide Order 51 Rules 14 and 15 of the Civil Procedure Rules, 2010. Thereafter, learned counsel for the respondents highlighted three [3] key issues. The issues are: The application by the Applicant is a disguised attempt to procure substantive orders which were never sought vide the primary pleadings; the issues raised by the Applicant are res judicata; and the court is functus officio. 8.Flowing from the foregoing, learned counsel for the respondents has submitted that the instant application, is not only misconceived but constitutes an abuse of the due process of the court. To this end, the court was invited to dismiss the application and to award costs to the respondents. 9.Having reviewed the Notice of Motion Application; the Supporting Affidavit in support thereto; and upon considerations of the oral submissions by/on behalf of the parties ; and bearing in mind the provisions of Order 2 Rule 6 of the Civil Procedure Rules, 2010, I come to the conclusion that the determination of the subject application turns on two [2] key issues. The issues are: Whether the court is seized of jurisdiction to grant the orders of eviction which were never sought vide the primary pleadings or otherwise; and Whether orders of eviction [if at all] can issue on the basis of an application, in the manner sought. 10.Regarding the first issue, it is important to underscore that courts of law are called upon and enjoined to entertain proceedings based on the pleadings that were/are filed by the parties. In addition, it is common ground that a court of law can only engage with and grant the reliefs that were captured at the foot of the pleadings, albeit subject to proof in the conventional manner. [See Section 108 and 109 of the Evidence Act]. 11.The law as pertains to the mandate of the court and more particularly, that a court can only engage with the issues and the reliefs contained at the foot of the pleadings is now well settled. In case of Presbyterian Foundation v Kibera Siranga Self Help Group Nursery School [2023] KECA 371 (KLR), the Court of Appeal highlighted the obtaining legal position in the following manner:“When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. The Supreme Court of India in Bachhaj Nahar v Nilima Mandal & anr., (Civil Appeal Nos. 5798-5799 of 2008), (2008) 17 SCC 491 while addressing the question whether a Court can go beyond what is pleaded in pleadings for adjudication laid down the following fundamental principles:a.No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the courtb.A court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.c.A factual issue cannot be raised or considered for the first time in a second appeal. 34.The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. The pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take. 34.The question before us is not whether there was some material on the basis of which the said relief could be granted. The question is whether such relief can be granted, when the appellant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when the affected person had no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice.” 12.The court ventured forward and added thus:“A case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. However, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. (See this court’s decision in Dakianga Distributors (K) Ltd v Kenya Seed Company Limited (2015) eKLR).” 13.It is also instructive to underscore that in an adversarial system like ours, the parties, the Applicant herein not excepted, are bound by their pleadings. Similarly, the court is equally bound by the pleadings filed on behalf of the parties. Notably, the adversarial system does not have or leave room for AOB [Any Other Business]. 14.In the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR), the Court of Appeal reiterated and reaffirmed the position pertaining to the doctrine of departure. In addition, the Court of Appeal posited that where a party seeks to introduce a new issue/relief, which was not captured in the pleadings, then it behooves the party to amend the obtaining pleadings. 15.The court stated thus:“..it is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.” 9.Other judges on the case expressed themselves in similar terms, with Judge Christopher Mitchell JSC rendering himself thus;“In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.” 16.It is common ground that the Applicant herein did not file a counter claim even after the court issued directions pertaining to and concerning the manner in which the originating summons was to be canvassed. It is important to recall that the directions were issued in line with the provisions of Order 37 Rules, 16, 17, and 19 of Civil Procedure Rules, 2010. In particular, the court directed that the originating summons and the supporting affidavit thereto were to be deemed as the plaint, whereas the replying affidavit was to be deemed as the statement of defence. Quite clearly, the Applicant was capable of mounting a counterclaim, subject to advise. 17.Other than the foregoing, there is no gainsaying that the Applicant was within his right to file and mount a separate suit seeking, inter alia eviction; and thereafter making the requisite application to have the said suit [if any] to be consolidated with the originating summons. 18.Be that as it may, I beg to point out that the Applicant did not file any pleading or claim before this court seeking for an order of eviction. To the extent that the Applicant did not file any primary pleadings highlighting eviction, the Applicant cannot through the back door now revert to court and seek to procure an order of eviction on the basis of a post judgment application. 19.Learned counsel for the Applicant intimated to the court that the court should deploy and invoke the inherent jurisdiction under Section 3A of the Civil Procedure Act, Chapter 21, Laws of Kenya; and thereby grant the eviction. The invocation of the inherent jurisdiction of the court seems to be the easy fall back for parties and advocates who do not want to comply with both substantive procedure and procedural rules. The position of such parties, and their Legal counsel is to the effect that inherent Jurisdiction should be deployed as a panacea for all manner of lapse[s]. 20.Be that as it may, I wish to highlight that the inherent jurisdiction cannot be invoked where there are exiting provisions of the law, intended to address a particular situation. Suffice it to state that the inherent jurisdiction of the court cannot be invoked to grant a relief which had not been sought vide the substantive pleadings. 21.In the case of Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited [2017] KECA 431 (KLR), the Court of Appeal discussed the legal position pertaining to the invocation of the inherent jurisdiction and its applicability. 22.The court pointed out thus:And inherent jurisdiction cannot be invoked where adequate statutory provision exists. It was held in Taparn vs Roitei [1968] EA 618 that inherent jurisdiction should not be invoked where there is specific statutory provision to meet the case. The Advocates Act and the Advocates Remuneration Order confer on the Taxing Officer jurisdiction to tax bills of costs between advocates and their clients (as well as between party and party in litigation) so as to determine legal fees for legal services rendered. 23.Flowing from the foregoing, I find and hold that the prayer for eviction which is now being sought vide the instant application; and which application is at variance with the pleadings that were filed by the Applicant, has been mounted in vacuum. The prayer is not well founded. 24.Next is the issue as to whether an order of eviction can issue on the basis of an application. There is no gainsaying that on order of eviction is a substantive order/relief. In so far as an eviction order is substantive in nature, same can only issue and or be granted upon the determination of a substantive suit. In addition, and taking into account the legal implications of an eviction order, same must be duly pleaded/sought in the substantive suit. 25.Nevertheless, a trend has gained traction whereby advocates and litigants are now approaching the court by way of miscellaneous applications or post judgment application, like the one beforehand, seeking to procure an order of eviction. To my mind, the trend and practice, which is intended to obtain substantive orders of eviction vide applications, is unorthodox and unknown to law. 26.Furthermore, I wish to point out that the kind of trend that is now gaining traction, if not tamed and averted, is likely to degenerate into anarchy. I am afraid that the trend does not sit well with the doctrine of departure and more particularly, the Provisions of Order 2 Rule 6 of the Civil Procedure Rules. 27.It is also instructive to take cognizance of the section 19 of the Civil procedure Act, Chapter 21, Laws of Kenya, and read together with Order 3 Rule 2 of the Civil Procedure Rules, 2010, which underpin the manner of approaching the court of law for intervention, depending on the nature of relief[s] that the parties are seeking. 28.Before concluding on the issue, it suffices to cite and reference the holding in the case of Scope Telematics International Sales Limited v Stoic Company Limited & another [2017] KECA 545 (KLR). The Court of Appeal highlighted the importance of the vehicle deployed to approach the jurisdiction of the court and to seek relief. 29.The court stated thus:Our jurisprudence reflects the position that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or Statute, that procedure should be strictly followed (See Speaker of National Assembly vs. Njenga Karume [2008] 1 KLR 425). The 1st respondent did not proffer any reason or excuse for its failure to premise its application upon a suit as was required by the rules. It however sought to rely on Article 159 of the Constitution for the proposition that justice is to be administered without undue regard to technicalities. That Article also provides that alternative forms of dispute resolution mechanisms like arbitration should be promoted by the courts. There are however many decided cases to the effect that Article 159 of the Constitution should not be seen as a panacea to cure all manner of indiscretions relating to procedure (See Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Ors [2010] eKLR; 30.In a nutshell, it is my conclusion that a substantive order of eviction cannot be sought and obtained on the basis of an application. Furthermore, such an order cannot issue on the basis of a post judgment application, particularly, where no such order had been sought in the primary pleadings. Conclusion 31.The Applicant herein had sought to procure and obtain an order of eviction. However, there is no gainsaying that the Applicant did not mount or file any counter claim; or cross suit, to anchor the prayer for eviction. As it is, the prayer for eviction vide the current application, is hanging by a thread. The prayer is devoid of any legal foundation. Final orders: 32.Flowing from the foregoing, it must have become apparent that the subject application is not only premature but same is misconceived; and legally untenable. 33.In the premises, the final orders that commend themselves to the court are:i.The Application dated the 12.05.2026 be and is hereby Dismissed.ii.Costs of the Application be and are hereby awarded to the Respondents.iii.The costs in terms of clause [ii] shall be agreed upon and in default be taxed in the usual manner. 34.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 15TH DAY OF JUNE, 2026OGUTTU MBOYA, FCIArb; CPM [MTI].JUDGEIn the presence of:Court Assistant: ZakayoMr. Miriti for the Defendant/Applicant.Mr. Basilio Gitonga for the Plaintiffs/Respondents.