https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2937

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KERICHO** **ELC MISC. APPLICATION NO. E022 OF 2024** **RONNY TANUI** **BETTY CHEPKEMBOI BIRIR** **DAVID TONUI KIPKEMOI** **MARY CHEBET BIRIR (Suing as the legal representative of the Estate of WILLIAM KIPTANUI BIRIR alias KIPTONUI ARAP BIRIR)………………………………………………..…………..APPLICANTS** **VERSUS** **ALFRED KIPKORIR MUTAI (Sued as the Legal Representative of the Estate of JONATHAN BIRIR).....................1ST RESPONDENT** **ALFRED MUTAI…………………………………..…….2ND RESPONDENT** **RULING.** **Introduction.** 1. This ruling is in respect of the Applicants Notice of Motion application dated 30th July, 2024. The application is expressed to be brought under **Sections 152A, 152B, 152E** and **152F** of the **Land Act.** 2. The application seeks the following orders; 1. ***The Honourable Court be pleased to grant an order of eviction of the Respondents from a portion of Land Title No. Kericho/Kapsuser/221 measuring approximately 5.35 acres, and deliver vacant possession of the portion to the Applicants.*** 2. ***That the OCS Sosiot Police Station do supervise and grant security during the eviction.*** 3. ***The costs of this application be provided for.*** 3. The application is based on the grounds on its face and the supporting Affidavit of **Mary Chebet Birir** that is sworn on 30th July, 2024. **Factual Background.** 1. The application under consideration first came up for hearing on 30th October, 2024 which hearing was adjourned to 19th November, 2024. 2. On 19th November, 2024 the Court issued directions that the application be canvassed by way of written submissions. 3. On 30th January, 2025, the Court was informed that the 1st Respondent died sometime in December, 2024. 4. The matter was mentioned severally to confirm substitution and on 3rd July, 2025 **Alfred Kipkorir Mutai** was substituted in place of the deceased 1st Respondent. 5. Thereafter, the application was mentioned severally to confirm filing of submissions and on 17th February, 2026, parties requested and were granted leave to highlight their respective submissions. 6. Subsequently, the application was reserved for ruling. **The Applicants Contention.** 1. The affidavit in support of the application is sworn by **Mary** **Chebet Birir** the 4th Applicant. 1. She contends that they are the administrators of the Estate of **William Kiptonui Birir** alias **Kiptonui Arap Birir** (Deceased). She goes on to state that they were issued with a Grant of Letters of Administration Intestate on 1st April, 2021. 2. She also contends that **William Kiptonui Birir** alias **Kiptonui Arap Birir** (deceased)is the registered proprietor of land parcel No. **Kericho/Kapsuser/221.** 3. She further contends that the deceased 1st Respondent was a creditor of the estate of their deceased father and he was entitled to a portion of the suit parcel of land measuring 2.5 acres. 4. It is her contention that the deceased 1st Respondent’s portion is demarcated and that he was in possession for four decades. She goes on to state that the deceased 1st Respondent constructed a homestead for his family on the said portion. 5. It is also her contention that they have a large-scale tea farm on the suit parcel of land and they sell the harvested tea to Tegat Tea Factory. 6. It is further her contention that in November, 2020, the Respondents unlawfully took possession of a portion of land parcel No. **Kericho/Kapsuser/221** measuring 5.35 acres. She goes on to state that they put up a gate at the entrance of the said portion thereby denying them access. 7. She contends that they cannot access the property and the Respondents occupation of the 5.35-acre portion of the suit parcel of land is unlawful, illegal and amounts to trespass. 8. She also contends that the Respondents were served with an Eviction Notice on 1st March, 2024 and adds that the Notice was copied to the Deputy County Commissioner, Belgut Sub County and the Officer Commanding Station, Sosiot Police Station. 9. She further contends that the eviction notice requested the Respondents to give vacant possession of the said portion of the suit parcel of land and they have failed to do so. 10. It is her contention that the notice period expired on 3rd June, 2024 and the Respondents have neither moved out nor filed any proceedings contesting the eviction notice. 11. She ends her deposition by stating that the eviction notice is ripe for enforcement and it is in the interest of justice that the Court grants the orders sought in the application. 12. Despite being given several opportunities, the Respondents did not file a response to the application under consideration. **Issues for Determination**. 1. The Applicants filed submissions dated 14th October, 2025 while the Respondents filed their submissions dated 21st October, 2025. 2. The Applicants submit on the issue whether the Court should grant an order of eviction against the Respondents. 3. The Applicants submit that their deceased father was registered as the owner of land parcel No. **Kericho/Kapsuser/221** on 29th November, 1970 and was issued with the land certificate on 23rd March, 1971. 4. The Applicants rely on **Section 24(1)** of the Land Registration Act, **Sections 152A, 152B, 152E** and **152F** of the Land Act, the judicial decision of **Margaret Karwirwa Mwongera vs Francis Kofi [2019] KEELC 3705 (KLR), Ringera v Muhindi [2022] KEELC 2481 (KLR)** and reiterate that the Respondents were served with a proper eviction notice. 5. It is the Applicants submissions that the Respondents failed to comply with the said notice and they should therefore be evicted. 6. The Applicants conclude their submissions by urging the Court to allow their application as prayed. 7. The Respondents submit that the Applicants describe the deceased 1st Respondent as one of the creditors of the estate of their deceased father. 8. The Respondents also submit that the Applicants have attached to their affidavit in support of the application a copy of a P & A Form sworn on 2nd March, 2020 which lists among other persons, the deceased 1st Respondent as a liability of the estate of the deceased. 9. The Respondents further submit that the 2nd Respondent who is the deceased 1st Respondent’s son cannot therefore be said to be in illegal occupation. 10. It is the Respondents submissions that they are rightfully in occupation and until their share is identified and/or ascertained, the intended process of eviction is premature. 11. It is also the Respondents submissions that the Applicants admit that they (Respondents) have been in possession for a period of over four decades. 12. It is further the Respondents submissions that it cannot be ascertained with clarity whether the deceased 1st Respondent’s share in the suit parcel of land is 2 acres and/or 2.5 acres and from which portion of the property the said portion is to be excised. 13. The Respondents submit that unless and until a resurvey is done with a view ascertaining the said portion, they cannot be said to be in illegal occupation. 14. The Respondents also submit that Probate and Administration proceedings in Kericho HC Succession Cause No. 3 of 2020 are yet to be concluded. 15. The Respondents further submit that the application under consideration is premature and they rely on the judicial decision of **Stringsfilel Limited v Kamotho & 9 others [2023] KEELC 15741 (KLR)** in support of their submissions. 1. The Respondents conclude their submissions by urging the Court to dismiss the Applicants application with costs. 2. During highlighting of submissions, Counsel for the Applicants submitted that the principal prayer in the application under consideration is for an order of eviction of the Respondents from a portion of land parcel No. **Kericho/Kapsuser/221** measuring 5.35 acres. 3. Counsel also submitted that they filed submissions dated 14th October, 2025. 4. Counsel further submitted that the application is unopposed as the Respondents did not file a Replying Affidavit despite the Court granting them leave to do so. 5. It was Counsel’s submissions that the only issue for determination is whether the Court should issue an order of eviction. 6. It was also Counsel’s submissions that the Applicants are administrators of the estate of **William Birir** (deceased) and they were issued with a Grant of Letters of Administration which they attached to the affidavit in support of the application. 7. It was further Counsel’s submissions that **William Birir** (deceased) is the registered owner of land parcel No. **Kericho/Kapsuser/221.** 8. Counsel submitted that a Certificate of Official Search, a copy of the title deed of the suit parcel of land and a copy of the green card have been attached to the Affidavit in support of the application. 1. Counsel also submitted that the Respondents do not dispute that they occupy a portion of the suit parcel of land that measures 5.35 acres. 2. Counsel further submitted that the Respondents do not dispute that they took possession of the said portion in November, 2020. 3. It was Counsel’s submissions that this date was important as they took possession of the said portion five years after the death of the registered proprietor. 4. It was also Counsel’s submissions that the Respondents are in unlawful occupation of the said portion and that is why they were served with an eviction notice dated 1st March, 2024. 5. It was further Counsel’s submissions that the eviction notice was served upon the Deputy County Commissioner Belgut and the OCS Sosiot Police Station. 6. Counsel submitted that the said notice was at pages **17** to **18** of the application. 7. Counsel also submitted that the Applicants attached an Affidavit of Service which shows service upon the Respondents and the two officers. 8. Counsel further submitted that **Section 152A** of the **Land Act** prohibits unlawful occupation of land. 9. Counsel concluded his submissions by urging the Court to allow the application as prayed as the Respondents have not disputed the eviction and neither have they approached the Court seeking for any relief under **Section 152F** of the **Land Act.** 10. In her submissions, Counsel for the Respondents confirmed that they did not file a response to the application. 11. Counsel submitted that it is not in dispute that the Respondents are in occupation of a portion of the suit parcel of land. 1. Counsel also submitted that the Respondents have been in occupation for a period of over four decades. 2. Counsel for the Applicants with the consent of Counsel for the Respondents, clarified that the eviction sought was with regard to 5.35 acres and not the 2.5 acres that the Respondents have always been in possession of. 3. It was Counsel for the Respondents submissions that probate proceedings are still pending in Kericho HC Succession Cause No. 3 of 2019. 4. It was also Counsel’s submissions that the Respondents are yet to receive their share of the suit parcel of land that is to be excised from land parcel No. **Kericho/Kapsuser/221**. Counsel added that land parcel No. **Kericho/Kapsuser/221** measures 10.6 Ha. 5. It was further Counsel’s submissions that until the portion the Respondents are entitled to is identified and ascertained, their eviction will be premature. 6. Counsel submitted that the Applicants have not demonstrated that the probate proceedings have been concluded by availing a Certificate of Confirmation of Grant. 7. Counsel also submitted that the Applicants are alleging in the present proceedings that the Respondents are only entitled to a two-and-a-half-acre portion of the suit parcel of land and yet in the succession cause, they contend that the Respondents are entitled to two acres. 8. Counsel further submitted that in view of the discrepancy on the actual acreage that the Respondents are entitled to, the portion the Applicants are seeking to evict the Respondents from is uncertain. 9. Counsel concluded her submissions by urging the Court to dismiss the Applicants application with costs. 10. In a rejoinder, Counsel for the Applicants submitted that the dispute before Court was not over what the Respondents are entitled to from the Estate of **Birir** (deceased). 11. Counsel also submitted that the dispute is over the illegal occupation of a 5.35-acre portion of the suit parcel of land. 12. Counsel further submitted that tea has been planted in the said portion which tea the Respondents are selling and depriving the Applicants off the income. 13. It was Counsel’s submissions that if the Respondents are allowed to be in occupation of the said portion then it will be tantamount to intermeddling with the estate of the deceased. 1. It was also Counsel’s submissions that the fact that succession proceedings have not been concluded does not give the Respondents the rights to continue being in occupation. **Analysis and Determination.** 1. I have considered the Applicants application and the rival submissions. It is my view that the only issue that arises for determination is whether the application dated 30th July, 2024 has merit. 2. The Applicants contend that they are the legal representatives of the estate of **William Kiptonui Birir** alias **Kiptonui Arap Birir** (Deceased) the registered owner of land parcel No. **Kericho/Kapsuser/221.** 3. The Applicants also contend that the deceased 1st Respondent was a creditor of the said estate and he is entitled to a two-and- a-half-acre portion of the suit parcel of land. 1. The Applicants further contend that the portion the deceased 1st Respondent is entitled to is demarcated and he was in possession. 2. It is the Applicants contention that in November, 2020, the Respondents trespassed onto a 5.35-acre portion of the suit parcel of land and fenced it off. 3. It is also the Applicants contention that they served the Respondents with an eviction Notice on 1st March, 2024 which notice was also served upon the Deputy County Commissioner Belgut Sub County and the Officer Commanding Station Sosiot Police Station. 4. It is further the Applicants contention that the notice expired on 3rd June, 2024 and the Respondent did not move out of the said portion. 5. The Applicants therefore seek that an order of eviction be issued. 6. The Respondents did not file a response to the Application and the only admissible parts of their submissions would be submissions on questions of law and facts that are not disputed. 7. The Respondents submit that since the deceased 1st Respondent was a creditor of the estate of the deceased, they are rightfully in occupation until their share in the estate of the deceased is identified and/or ascertained. 8. The Respondents also submit that in the succession cause, the Applicants contend that they (Respondents) are entitled to a two-acre portion of the suit parcel of land while in the present proceedings, they contend that they are entitled to a two-and-a-half-acre portion of the suit parcel of land. 9. The Respondents further submit that it cannot therefore be ascertained with clarity the portion of the suit parcel of land they are entitled to and which part of the suit parcel of land it should be excised from. 10. It is not disputed that the Respondents are in possession of a portion of land parcel No. **Kericho/Kapsuser/221** by virtue of the deceased 1st Respondent being a creditor of the estate of **William Kiptonui Birir** alias **Kiptonui Arap Birir** (deceased). 11. What is disputed in the size of the portion of the suit parcel of land the Respondents are in occupation of and/or entitled to. 1. The Applicants have attached a copy of the Affidavit in Support of the Petition for Letters of Administration Ad Litem filed in Kericho HC Succession Cause No. 3 of 2019 In the matter of the estate of **William Kiptanui Birir** alias **Kiptanui Arap Birir** (Deceased). The affidavit is sworn by **Ronny Tonui, Betty Chepkemoi Birir, David Tonui Kipkemoi** and **Mary Chebet** **Birir** the Applicants herein. On the liabilities section, they state that **Jonathan Birir** is entitled to 2.0 acres of land parcel No. **Kericho/Kapsuser/221.** 1. In the affidavit in support of the application, the Applicants contend that the Respondents are entitled to a two-and-a-half-acre portion of the suit parcel of land. 2. On one hand, the Applicants contend that the Respondents are entitled to a two-and-a-half-acre portion of the suit parcel of land and that they are allegedly in illegal occupation of a portion of the suit parcel of land measuring 5.35 acres. 3. On the other hand, the Respondents submit that the Applicants are not clear on the portion of land they (Respondents) are entitled to. In the succession cause, the Applicants contend that they are entitled to two acres while in the present suit, they (Applicants) contend that they (Respondents) are entitled to a two-and-a-half-acre portion of the suit parcel of land. 4. The Respondents therefore submit that they are waiting for the Court in Kericho HC Succession Cause No. 3 of 2019 to make a determination on the portion of land parcel No. **Kericho/Kapsuser/221** that they are entitled to. 5. **Section 152 A** of the Land Act provides as follows; ***“A person shall not unlawfully occupy private, community or public land.”*** 1. **Section 152 B** of the Land Act provides as follows; ***“An unlawful occupant of private, community or public land shall be evicted in accordance with this Act.”*** 1. **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.”*** 1. In the judicial decision of **Julius L Marten v Caleb Arap Rotich [2021] KEELC 195 (KLR)** the Court while considering the provisions of **Sections 152C, 152D and 152E** of the Land Act, 2012 held as follows; ***“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.”*** (Emphasis mine) 1. As stated, it is evident that the Respondents have an interest in the suit parcel of land. 2. It is also evident that they are in occupation of the said parcel of land as a result of the said interest. 3. The following issues are in dispute; 1. ***The size of the portion of land parcel No. Kericho/Kapsuser/221 the Respondents are in possession of.*** 2. ***The portion of land parcel No. Kericho/Kapsuser/221 the Respondents are entitled to.*** 4. It is my view that these issues have to be determined before the Court can issue any orders of eviction. 5. In the judicial decision of **Julius L Marten v Caleb Arap Rotich (supra),** the Court held that **Section 152E** of the **Land Act** envisages a situation where there is no dispute on ownership and the occupation is unlawful. 6. In the present suit there is no dispute as to ownership but there is an apparent dispute as to the portion of the suit parcel of land the Respondents are in possession of and/or the portion they are entitled to. 7. Given the said circumstances, it is my view that an order of eviction cannot issue and the Applicants ought to have filed a formal suit for the determination of the said issues. **Disposition.** 1. Taking the foregoing into consideration, I find that the Applicants application dated 30th July, 2024 lacks merit and it is hereby dismissed with costs. 2. It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 14TH DAY OF MAY, 2026.** **L. A. OMOLLO** **JUDGE.** **In the presence of: -** **Miss Bii for Mr. Muthee for the Applicants.** **Miss Koech for the Respondents - Absent** **Mr. Makori. Court Assistant**