[2023] KEELC 864 (KLR)

Ochwa (Suing as administrator ad litem for the Estate of Mishael Ochwa Ojwang’ alias Michael Ochwa Ojwang - Deceased) v Ochola & 8 others (Environment & Land Case 410 of 2017) [2023] KEELC 864 (KLR) (8 February 2023) (Ruling)

Neutral citation: [2023] KEELC 864 (KLR)

Republic of Kenya

In the Environment and Land Court at Migori

Environment & Land Case 410 of 2017

MN Kullow, J

February 8, 2023

Between

Patrick Okoth Ochwa (Suing as administrator ad Litem for the Estate of Mishael Ochwa Ojwang’ alias Michael Ochwa Ojwang - Deceased)

Plaintiff

and

Bernard Otieno Ochola

1st Defendant

Opuodho

2nd Defendant

Jane Bande

3rd Defendant

Joash Ogembo Bande

4th Defendant

Samuel Agola

5th Defendant

Esther Anyango Wasonga

6th Defendant

Jakoyo Mito

7th Defendant

Omondi Wasonga

8th Defendant

Omondi Wasonga

9th Defendant

Ruling

1. The plaintiff/ applicant herein filed a Chamber Summons Application dated October 4, 2022, seeking the following orders: -a.Spent.b.That the defendants, their representatives, agents, servants and/or employees or whosoever acting on their behalf be evicted from Land Reference Number Kamagambo/ Kamwango/ 597 forthwith.c.That the Honourable Court be pleased to order the Deputy County Commissioner and Sub-County Police Commander Rongo Sub-County to give security to the Plaintiff, auctioneer and/or court bailiff while executing the warrants of eviction.d.That the costs of this Application be provided for.

2. The Application is premised on the 6 grounds thereon and on the Supporting Affidavit sworn by one Lenin Owuor Awino, an Advocate having conduct of the matter on behalf of the Plaintiffs, on even date. The applicant contends that judgment was entered in the matter on the 09/06/2021 and whose effect was to order the Defendants to move their houses and any structures on the suit land and to thereafter hand over vacant possession of the suit land within 90 days from the date of the judgment.

3. It is his claim that despite the defendant being served with the eviction notices on 02/08/2021 to vacate the suit land; they have failed, neglected and/or refused to give vacant possession within the prescribed timelines and are still in occupation thereof.

4. He is now apprehensive that as a result of the defendants/respondents’ continued illegal and unlawful occupation; his plans of developing the suit land have been hampered and hence the need to issue the warrants of eviction and forcefully evict them. He thus urged the court to grant the orders sought in the interest of justice.

5. The 1st – 8th defendants/respondent did not file any response to the instant Application and the same is thus deemed unopposed on their part. The 9th defendant/ respondent on the other hand, despite being granted leave to file its replying affidavit, from a perusal of the court record no replying affidavit was filed.

6. The instant Application was canvassed by way of written submissions. From the court record I have noted that only the 9th defendant/ respondent filed its written submissions which I have read and taken into account in arriving at my decision.

7. The sole issue for determination before me is whether the Chamber Summons Application dated 04/10/2022 is merited.

8. It is not in dispute that judgment was entered on 09/06/2021, whose effect was to order for the eviction of the defendants from the suit land. The said judgment has never been set aside, varied and/or appealed against by the defendants/respondents and the terms thereof are still binding on all the parties. Further, there is no Order for Stay of Execution in respect of the said Judgment or Decree. It is also not in dispute that the respondents herein are still in occupation of the suit parcel and hence the instant Application.

9. I have looked at the contents of the said judgment & Decree and the terms thereon, I have also looked at the various notices dated 27/07/2021 issued by the applicant pursuant to sections 152E of the Land Act and whose effect was to give the Respondents herein 90 days within which to vacate the land. The said notices were addressed to each of the Respondents and duly served upon them; therefore, there is no contest as to their contents particularly on the strict timelines thereon of 90 days.

10. Section 152E of the Land Act provides as follows: -“(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.

11. From a cursory look at the Notices issued by the applicant herein dated 27/07/2021; the same fully complied with the provisions of section 152E above. The notices were in an official language, the terms and conditions as to the removal of buildings and any improvements erected thereon, reaping of any crops that may have been planted were clearly outlined and the said notices were served upon the Deputy County Commissioner, Sub-County Police Commander, DCI Rongo Sub-County, the Assistant County Commissioner and the Chief North Kamagambo.

12. The 9th respondent on its part stated that it has since demolished the Church structure and vacated the Applicant’s suit parcel and therefore the Applicant’s claim cannot stand against it. He annexed photographs in support of these assertion. I therefore find that the orders sought are untenable against the 9th respondent since the same have been overtaken by events.

13. The 1st- 8th Respondents on the other hand have neither given any sufficient explanation for their continued occupation and use of the suit parcel despite the clear terms of the judgment directing them to vacate the same nor moved the court for appropriate relief against the notices for eviction as provided under section 152F of the Land Act. The said judgment and all the consequential orders arising therefrom remain valid court orders and are binding on the respondents herein.

14. I am satisfied that the 1st – 8th respondents were served with the requisite eviction notices to vacate the suit land in accordance with the provisions of section 152E of the Land Act; the said notices fully complied with the requirements outlined in the Act. I am also satisfied from the material before me, that the applicant is the lawful and actual owner of the suit land and therefore the continued occupation of the same by the Respondents is unlawful and unjustified.

15. In view of the foregoing; I am guided by the provisions of section 152F (1) of the Land Act and I accordingly proceed to confirm the notices and Order for the eviction of the 1st – 8th respondents from the suit land.

Conclusion 16. The upshot of the foregoing analysis is that the plaintiff/ applicant’s Chamber Summons Application dated October 4, 2022 is merited and the same is hereby allowed on the following terms: -I.An Order of Eviction be and is hereby issued against the Defendants, their representatives, agents, servants and/or employees or whosoever acting on their behalf to be evicted from Land Reference Number Kamagambo/ Kamwango/ 597 forthwith.II.An Order is hereby issued directed to the Deputy County Commissioner and Sub-County Police Commander Rongo Sub-County to give security to the Plaintiff, auctioneer and/or court bailiff during execution of the warrants of eviction.III.Costs of this Application be borne by the 1st 8th respondents.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MIGORI ON 8TH DAY OF FEBRUARY, 2023. MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -.................. for the Plaintiff/ Applicant...................for the Respondent