https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5154

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NAIROBI** **MILIMANI ENVIRONMENT AND LAND COURT** **ELCLC MISC APPLICATION NO. E176 OF 2026** **PETER MWANGI GATHOGO t/a** **DAYSTAR AUCTIONEERS ……….......................……………….. APPLICANT** **HOLY SPIRIT CHURCH OF EAST AFRICA** **REGISTERED TRUSTEES ............................................................. PLAINTIFF** **VERSUS** **FRIENDS CHURCH IN KENYA (QUAKERS) NAIROBI** **YEARLY MEETING TRUSTEES ………..……… DEFENDANT/RESPONDENTS** **RULING** 1. The court by an application dated 3.6.2026 is asked to order the officer commanding Buruburu Police Station or such other police station as the court may direct to escort the applicant during execution of eviction orders issued on 7.11.2024 in Milimani ELC No. E405 of 2024(Holy Spirit Church of East Africa Registered Trustees vs Friends Church in Kenya (Quakers) Nairobi Yearly Meeting Trustees.) 2. The reasons are contained in the face on the application and in the Supporting Affidavit by Peter Mwangi Gathogo sworn on 3.6.2026. It is deposed that the Applicant is a class ‘B’ licenced auctioneer trading in the name of Day Star Auctioneers. The attached a copy of his 2026 license marked as annexture PMG1, as proof of the same. 3. The Applicant deposes that on 7.11.2024, the Environment and Land Court at Nairobi in ELC No. E405 OF 2024 granting, issued a mandatory injunction directing the defendant/respondent in that suit to vacate LR No. 209/18222 herein after the suit property, within 30 days from the date of issuing the orders, failure to which the Plaintiff in the suit was at liberty to evict and demolish the perimeter wall fence erected on the suit property, by the defendant. 4. It is further deposed that the Defendant/Respondent in the suit has failed to comply with the said orders and instead continues to occupy the suit property unlawfully. The deponent states that attempts to execute the order has been frustrated, that there is imminent likelihood of resistance and breach of peace. 5. When this application came up,the court directed that the Respondent be served with the application. An affidavit of service on record confirms that service was duly effected. Despite such service, the respondent neither entered appearance nor filed any response within the prescribed time or at all. 6. What the applicant herein intends to be assisted with is to enforce the court orders issued in ELC No. E405 OF 2024 through a miscellaneous application. Article 10 of the Constitution of Kenya provides gives the National Values and Principles of Governance binding on all state organs and persons who exercise public authority. They include rule of law, human dignity, equity, social justice, human rights, and due process. 1. Therefore, Courts must ensure that due process is followed before granting orders of eviction, such as what is before this court as was held in mitubell case. 2. Article 40 of the constitution provides for Protection of the Right to Property. It protects the rights of property owners and supports lawful enforcement of court orders for recovery of land, while ensuring that the process complies with the law. 3. Article 43(1) (b) of the constitution provides that occupiers of land are entitled to protection from arbitrary or unlawful eviction. Any eviction must therefore comply with constitutional and statutory safeguards. Article 48 on access to Justice guarantees that parties faced with eviction have access to the courts to challenge the process. 4. A party seeking for eviction or enforcement of such orders must follow the appropriate procedures laid down by the law before such orders are granted. 5. Section 152E of the Land Act provides:**Eviction Notice to unlawful occupiers of 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)](https://kenyalaw.org/akn/ke/act/2012/6/eng%402025-11-04#part_XI__sec_152E__subsec_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. Section 152E of the [Land Act](https://kenyalaw.org/akn/ke/act/2012/6) as introduced by the Land Laws (Amendment) Act, 2016, governs the procedure for the eviction of unlawful occupiers from private land. The provision requires a registered proprietor intending to evict an unlawful occupier to issue a written notice of not less than three months before the intended eviction. It further prescribes the manner in which such notice is to be served including service upon the unlawful occupier, the Deputy County Commissioner and the Officer Commanding Police Division and sets out the timelines within which the occupier is required to vacate the land and remove any structures or property therefrom. 2. The rationale underpinning this provision is to ensure that evictions from private land are undertaken in accordance with the law and the requirements of due process. It is intended to protect unlawful occupiers from arbitrary evictions by requiring prior notice, thereby affording them sufficient time to vacate the land, relocate and remove their belonging before the eviction is carried out. 3. The key requirements of Section 152E of [Land Act](https://kenyalaw.org/akn/ke/act/2012/6) are; A Written Notice, must be given in writing and the said notice must be in national and/or official language being Kiswahili or English. 4. Further, the notice must be issued at least three months prior to the intended date of eviction. It is required to specify the conditions relating to removal of any buildings, crops, or other belongings situated on the land. Equally important there must be satisfactory evidence demonstrating that the notice was duly served upon the unlawful occupier, the DCC, and the OCPD in compliance with the mandatory requirements of the law. 1. Section 34(1) of the Civil Procedure Act Cap 21 Laws of Kenya provides: ***34. Questions to be determined by court executing decree*** ***(1)All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.*** 1. Further, Order 22 Rule 6 of the Civil Procedure Rules provides that; ***Where the holder of a decree desires to execute it, he shall apply to the court which passed the decree, or, if the decree has been sent under the provisions hereinbefore contained to another court, then to such court or to the proper officer thereof;*** 1. in ***Nandlal Jivraj Shah & 2 others v Kingfisher Agencies [2018] KEELC 2334 (KLR)*** The court stated that Section 34 (1) above bars the filing of a separate suit where the question arising for determination relates to execution, discharge or satisfaction of a decree. 2. The court said that Section 34 of the Civil Procedure Act underscores the principle that all questions relating to the execution, enforcement, implementation, satisfaction or discharge of a decree must be determined by the court that issued the decree and within the original suit in which the original decree was made. 3. Notwithstanding the provisions of Section 34 of the Civil Procedure Act, as read together with the provisions of Order 22 Rule 6 of the Civil Procedure Rules 2010, the Plaintiff and Applicant herein have elected to institute the present the gravamen of which is to enforce, implement, execute and/or give effect to orders which was issued in ELC Case No. E405 of 2024 Holy Spirit Church of East Africa Registered Trustees vs Friends Church in Kenya (Quakers) Nairobi Yearly Meeting Trustees. Such procedure therefore is contrary to the established statutory framework governing the execution and enforcement of court decrees and orders. 4. The court takes judicial notice that ELC No. 405 of 2024 which is still pending before the trial court, having reached the pre-trial conference stage and remains undetermined on its merits. It is the view of this court that the relief sought herein are intrinsically connected with the orders issued in ELC No. E405 of 2024. Consequently such issues in question ought to be determined in the same file where the order was issued not through institution of a separate suit or proceedings. 5. On the issue of eviction, there is no evidence in the supporting affidavit that a Notice of Eviction was duly served upon the evicter in accordance with the law. In the absence of proof of service, the applicant has failed to satisfy this mandatory procedural requirements of the law. 6. In the case of **Gacheri v M’ikinyua; Kagwiria (Intended Interested Party) (Environment & Land Case 201 of 2012) [2024] KEELC 13369 (KLR) (20 November 2024) (Ruling),** the court held;“Section 152 (E) & (G) of the Land Laws (Amendment) Act No. 28 of 2016, clearly provides that the notice to vacate must be issued not less than three months before the intended date of eviction.” 7. In the case of **Dzimba v Hassan [2025] KEELC 4283 (KLR);** the Court stated as follows while issuing an eviction order sought vide an application: ***“There is no contest that the applicant has a decree in his favour which was passed on 02.02.2016. There is no dispute that the said decree has never been overturned on appeal or review. There is no contest that the respondent was found guilty of contempt of court for failing to comply with the terms of the decree. It is also evident from the material on record that the respondent has no pending appeal either against the decree or the order holding him in contempt of court. The court is thus satisfied that the applicant is entitled to enjoy the fruits of his judgment and that he is entitled to succeed in his application. The court is not satisfied that the respondent has demonstrated any legitimate reason to keep the applicant out of the suit property.”*** 1. Furthermore, before carrying out an eviction, an auctioneer in Kenya such as the applicants must strictly comply with the Auctioneers Act, the Auctioneers Rules, 1997, the Civil Procedure Act and the Civil Procedure Rules. Under Rule 15(d) of the Auctioneers Rules, 1997, the auctioneer must serve the occupants with a written notice of not less than seven (7) days before carrying out the eviction. The notice must also specify the date and time of eviction. The Applicant herein has not tendered any evidence before this court to show that he has complied with Rule 15(d) of the Auctioneer Rules. 2. Having considered the application and supporting affidavit on record together with annextures and applicable law, the court is not persuaded that the applicant has established a proper basis for the grant of the enforcement of the eviction orders sought. 3. In the result, the application fails and is dismissed with costs. **DATED SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JULY, 2026** **HON. JUSTICE C.K NZILI** **JUDGE** **In the presence of:** Court Assistant: Julius