https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3654

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC LAND MISC. CASE NO. E062 OF 2024** **ALEX MUASYA MUNGUTI……………………………………..1ST APPLICANT** **NZEKI MUNGUTI KENEKA…………………………………..2ND APPLICANT** **VERSUS** **PETER NG'ANGʻA…………………………………………………RESPONDENT** **RULING** 1. Before this court for determination is the applicants’ notice of motion dated 20 December 2024, 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 MUPUTI/KIIMA-KIMWE/4162 (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, together with their officers, provide escort and/or security during the execution of the orders sought hereinabove and ensure compliance with the said orders.*** 6. ***THAT the costs of this application be provided for.*** 7. The motion is based on the grounds listed on its face and Alex Muasya Munguti’s supporting affidavit, sworn on the instant date. A summary of the grounds supporting the motion is that the applicants are the registered owners of the suit property held under freehold tenure. Despite being served with an eviction notice in accordance with the law, the respondent, who is in possession of the suit property, has refused to vacate. That statutory procedures towards issuing the eviction notice were adhered to, including notifying the police and the Deputy County Commissioner. 8. 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 and supervise the eviction to protect the applicants’ constitutional right to property. 9. When served, the respondent opposed the motion through his notice of preliminary objection dated 19 January 2026, where he raised the grounds that: - 10. ***THAT the application dated the 20th day of December 2024 offends Article 50 of the Constitution of Kenya and Order 3 Rule 1 of the Civil Procedure Rules to the extent that it is seeking an eviction order without according the respondent a fair hearing by failing to file and serve him with substantive suit pleadings to be adjudicated in a full hearing seeking the specific and final orders of eviction.*** 11. ***THAT the application offends Article 40 of the Constitution on the right to ownership of property.*** 12. These grounds were also reiterated in his replying affidavit, sworn on 22 January 2026, whereby he succinctly avers that possession, occupation, use, and construction have taken place on a 1½ acre portion of the suit purchased by the late **Naftal Githuku Ng'ang'a** (his father) from Munguti Kyeneka, the applicants’ father. The property has been continuously inhabited by his family since the 1970s, and several family members have been buried there. 13. Although both parties' fathers passed away without completing the land transfer, the applicants are aware that the land was purchased. As the only surviving child of his father's second house, he was raised alongside the applicants on the suit property and has asserted continuous, uninterrupted occupation of the property for over fifty years. Allegations of trespass are considered unfounded by him. Further, he states that, since this is a dispute concerning land ownership, it requires a court evaluation of evidence and testimonies for a fair determination, and he informs the court that the application is defective due to the absence of a substantive suit. 14. As directed by the court, the motion and PO are canvassed by a pair of submissions filed by the law firms on record for the parties. The submissions of **Ms. B. M Mungata & Co. Advocates** for the applicants are dated 23rd and 26th March 2026. As for the respondent, his submissions were filed by **Ms. Wilfred K. Babu & Co. Advocates,** dated 29 January 2026 and 30 March 2026. Accordingly, having thoroughly examined the motion, grounds, PO, affidavits, together with annexures and rival submissions, the distilled issues for determination are: **(a)** **whether the PO has met the legal threshold and merited;** and **(b) whether the motion meets the legal threshold to warrant the issuance of eviction orders.** We proceed consecutively. 15. ***Whether the PO has met the legal threshold and merited*** 16. In regards to the first limb, the well-cited decision of **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. (1969) EA 696** has long established the tests that a PO must satisfy, and it is vital to reaffirm the relevant principles derived from the landmark case, which articulated that: ***“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”*** 1. In affirming **Mukisa Biscuit *(Supra),*** the Supreme Court of Kenya in **Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] KESC 23 (KLR)** emphasised the following on the threshold of a PO: - ***“Thus a preliminary objection may only be raised on a “pure question of law”. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”*** 1. Thus, based on these principles, when addressing this issue, the court will inquire whether the points of law are clear; whether the facts are settled and correct and do not require further ascertainment; and whether the court is not being asked to exercise its prudent discretion. Hence, having considered the grounds, albeit the second one being abandoned, this court finds that it concerns the court's jurisdiction, may dispose of the entire motion, and raises no matters of fact but pure points of law. Consequently, it finds that it meets the test set out in ***Mukisa Biscuit (Supra).*** 2. Turning to the 2nd limb of this issue, in his submissions, the respondent argues that the suit offends **Section 19** of the **Civil Procedure Act** and **Order 3 Rule 1** of the **Civil Procedure Rules.** He further argues that by filing the matter herein as a miscellaneous cause, the applicant contravened the law. As for the applicants, they argue that the PO is anchored in **Article 40** of the **Constitution,** which seeks to protect proprietary rights, yet the respondent has not adduced evidence to substantiate his allegations. The court agrees with the respondent, and his first ground of the PO is merited. 3. Notably, the respondent’s reply affidavit has raised contentious issues by stating that he is not a trespasser, but rather that his family has been in occupancy as of right for 50 years, with the parties’ fathers having entered into an agreement to purchase a portion of 1 ½ acres of the suit property. It appears he is raising a claim of adverse possession or trust. 4. Our **Section 19** of the **Civil Procedure Rules** states that every suit shall be instituted in the manner prescribed by the **Rules.** The significance of this legal provision is that a suit must be initiated in accordance with the procedure stipulated by law. Generally, a suit is commenced by way of a plaint, as provided under **Order 3 Rule 1 (1)** of the **Civil Procedure Rules.** In cases involving special circumstances, such as a constitutional petition, the **Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013** govern the proceedings. Alternatively, a suit may be instituted in other exceptional circumstances by way of an originating summons, as provided under **Order 37** of the **Civil Procedure Rules.** 5. Furthermore, a lawsuit may be instituted by way of a notice motion, as the applicant did, provided that a specific statute governs the procedure for seeking the court’s intervention in such a manner ***(see Abdi Abdullahi Somo v. Ben Chikamai & 2 Others [2016] eKLR).*** Additionally, in cases where no procedural framework is established by statute for a particular proceeding, the court may be moved by an originating motion ***(See Saint Benoist Plantations Ltd v. Jean Emile Adrien Felix (CA No 25 of 1954))*.** 6. 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. Therefore, this court finds that the PO is merited. This notwithstanding, we shall proceed to hear the merits of the motion. 2. **Whether the motion meets the legal threshold to warrant the issuance of eviction orders.** 3. 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 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 as affirmed by the copy of the title document, 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 individual 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 examined the documents submitted in support of the eviction motion. Although the applicants possess title to the suit land, there is no evidence that any notice was issued in accordance with **Section 152E** of the **Land Act,** as the respondent's national identity card details, postal and physical addresses have not been disclosed. Furthermore, after considering the return of service executed by Alex Wambua Muthenya on 12 September 2024, the court is not satisfied that the respondent was properly served, given that John Sila Kinyamasyo, mentioned as the owner of the suit property and allegedly pointed out the respondent's location to the process server, is a stranger to these proceedings. 2. Guided by the law and prevailing jurisprudence, and for the reasons and findings stated above, this court finds that the notice of motion dated 20 December 2024 is not merited and is struck out. The PO dated 19 January 2026 is hereby allowed. As costs follow the event, the respondent shall have costs of both the motion and the PO. The file is effectively 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. Mr. Onkangi for respondent. No appearance for other parties.