https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2965

Oil Com (K) Limited v Muriungi; Rurigi t/a Quick Line Auctioneers (Applicant) (Miscellaneous Application E019 of 2026) [2026] KEELC 2965 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 2965 (KLR) Republic of Kenya In the Environment and Land Court at Isiolo Miscellaneous Application E019 of 2026 JO Mboya, J May 14, 2026 Between Oil Com (K) Limited Instructing Party and Timothy Muriungi Respondent and Samuel Karithii Rurigi t/a Quick Line Auctioneers Applicant Ruling 1.Before me is the Notice of Motion Application dated the 08.04.2026; brought pursuant to the provisions of Section 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya; Order 50 Rule of the Civil Procedure Rules, 2010; and Rule 7 [2] of the Auctioneers Rules 2009; and wherein the Applicant seeks the following orders:i.That the Honourable Court be pleased to issue orders for police assistance and escort Samuel Karithii Rurigi/T/A Quick Line Auctioneers acting on behalf of the Oil Company [K] ltd the legal owners and proprietors of land plot No. Isiolo Township Block 4/88 to proceed and remove Timothy Muriungi together with all illegal occupants and structures erected on the plot thereof.ii.That the officer commanding Isiolo Police Station to provide security for the purpose of ensuring security of the Auctioneer, his agents and to maintain law and order during the exercise.iii.That the costs of this application be provided for. 2.The Application is supported by an affidavit sworn on the 08.04.2026 by the Applicant [namely, the Auctioneer]. The affidavit adverts to various issues. The issues are: The applicant is a licensed auctioneer; the applicant has been instructed by the firm of Ms/s. Ndegwa and Ndegwa Advocates to levy eviction against the respondent; the basis of the intended eviction relates to an eviction notice which was issued/served upon the respondent; the respondent thereafter failed to comply with the terms of the eviction notice; the Respondent has remained in occupation of the Suit Property; and thus the Respondent ought to be evicted. 3.Additionally, the Applicant has posited that: The eviction notice was copied to and served upon the Sub-county Police Commander and the Deputy County Commander, respectively. To this end, it has been posited that appropriate basis does exist to warrant the issuance of the orders for provision of police security; and escort for purposes of eviction. 4.Other than the foregoing, the Applicant has also averred that the instructing client [Oilcom Kenya Limited] is the registered owner of LR No. Isiolo Township/Block 4/88[herein after referred to as the suit property]. 5.The subject application came up for hearing on the 14.05.2026; where upon Mr. Samuel Kariithi Rurigi [the auctioneer] appeared before the court and invited the court to grant the orders sought at the foot of the application. Furthermore, the applicant contended that the respondent had been duly served with an eviction notice, but same failed to adhere to or comply with the terms of the eviction notice. Further, and in addition, it was contended that the respondent has no lawful rights to the suit property and thus the intended eviction suffices. 6.Additionally, the applicant submitted that the intended eviction cannot be levied without police assistance. Consequently, the applicant implored the court to grant the orders for police assistance and escort. 7.Having reviewed the application; the supporting affidavit thereto; the annextures attached to the affidavit; and upon consideration of the submissions by the applicant, I come to the conclusion that the determination of the subject application turns on two [2] key issues. The issues are: Whether there is a lawful Eviction order capable of being enforced by the applicant or otherwise; and Whether the issuance and service of [sic] an eviction notice in terms of Section 152 E and F of the Land Act, 2012 [2016] constitutes [sic] an eviction Order. 8.Regarding the first issue, it is imperative to state and underscore that an auctioneer, the applicant herein not excepted, can only proceed to levy eviction, if and where there is a lawful court order. Suffice it to state that an eviction order, can only issue following the determination of a substantive suit filed by the proprietor , or lawful agent of the Proprietor of the designated parcel of land. 9.In respect of the instant matter, the applicant contends that the proprietor of the suit property issued a notice to the respondent demanding that the respondent does vacate and hand over vacant possession of the suit property. In addition, it has been posited that despite service upon the respondent, the respondent has failed and neglected to vacate. To this end, the applicant is now seeking provision of security and police escort to levy eviction. 10.What is apparent is that the applicant has no eviction order. For good measure, none has been annexed and or exhibited. Moreover, the applicant confirmed that there is no eviction order. Instructively, the applicant herein is seeking to execute or implement the instructions contained at the foot of the advocate’s letter dated 02.01.2026. 11.I beg to highlight that an advocate[s] letter giving instructions to levy eviction, like the one being referenced, does not constitute an eviction order. Notably, where an eviction notice is served upon a trespasser on a designated private land; and the trespasser fails to comply, the issuer of the notice is obligated to approach the court vide a substantive suit; and not a Miscelleneous Application, and thereafter procure an eviction order, subject to proving that same is indeed the lawful and legitimate owner of the land. 12.Furthermore, the manner of approaching a court of law for purposes of procuring an eviction order [which is a substantive order] is provided for in terms of Section 19 of Civil Procedure Act, Chapter 21 Laws of Kenya; as read together with the provisions of Order 3 Rule 2 of the Civil Procedure Rules, 2010. 13.In the absence of an eviction order, there is no gainsaying that no eviction can be undertaken. Moreover, time is ripe to remind the applicant and his instructing client, that an eviction order only emanates from a court of law; and same cannot be inferred; speculated upon; or imagined. It is not lost on me that eviction, does occasion serious consequences and therefore before same can be levied, the law must be followed to the letter. [See the decision of the William Musembi 13 others v Moi Educational Centre Co. Ltd & 3 others [2021] eKLR] 14.Before concluding on this issue, it is important to reference the decision of the Court of Appeal in the case of Gusii Mwalimu Sacco Cooperative Society Limited versus Mwalimu Hotel Limited [1996] eKLR where the court dealt with a situation relating to an eviction, nay, recovery of vacant possession, which was carried without a lawful court order. The court was apt and succinct. 15.The court stated thus:A court of law cannot allow such state of affairs whereby the law of the jungle takes over. It is trite law that unless the tenant consents or agrees to give up possession the landlord has to obtain an order of a competent court or a statutory tribunal (as appropriate) to obtain an order for possession.Even if I were to hold that the tenant was at the material times a trespasser and that it had not pleaded holding over I would not sanction a situation such as in this case, that is, obtaining possession without a court order. That factor alone justified the making of the orders the learned judge made. 16.The Court of Appeal was dealing with a situation where a landlord resorted to evicting a tenant, who was deemed to be a trespasser without a court order. The court underscored that eviction or better still, recovery of vacant possession cannot be achieved without a lawful court order. 17.I am live to the facts in respect of the subject matter. It is contended that the respondent, who is sought to be evicted is [sic] a trespasser. The fact of trespass has not been proven. Moreover, there is no evidence that the instructing client is the registered owner of the suit property. 18.Be that as it may, there is no dispute that no eviction order has been procured. Absent an eviction order from a court of competent jurisdiction, no eviction can be levied. 19.Turning to the second issue, it is important to underscore that there has been a misconception that where an eviction notice is served and the terms thereof are not complied with by [sic] the trespasser, then the issuer of the eviction notice, is entitled to proceed and evict. Such an endeavor would culminate into the law of the jungle. Such an endeavor is not legally tenable and acceptable, more particularly, in the eye[s] of the Due process of the Law. 20.Further, and in any event, there is no gainsaying that the provisions of Article 50 [1] of the Constitution 2010, envisages a scenario where every dispute, irrespective of the nature thereof, must be adjudicated by a court of competent jurisdiction or where appropriate an independent tribunal. The constitution does not envisage a situation where a party, becomes the judge and executioner in the same matter [cause]. 21.To my mind, the failure by [sic] the trespasser to heed or comply with the terms of the eviction notice, does not by and of itself, amount to an eviction order. Suffice it to state that an eviction order can only issue from a court of law. 22.In the premises, I am afraid that the applicant herein cannot purport to seek provision of police security and escort to go and levy eviction, on the basis of and under the pretext that an eviction notice was issued, but was not complied with. 23.Before concluding on this matter, there are two incidental issues that merit a mention and short consideration. The first issue touches on and concerns non-compliance with Rule 12 of the Auctioneer Rules 1997 [2009]. The said rules require that a nominated auctioneer must issue and serve a notification upon the judgment debtor/the victim of the intended execution, immediately upon receipt of the warrant of attachment; or letter of instructions. 24.In respect of the instant matter, the applicant was seeking police security and escort to go and evict the respondent. However, there is no evidence of compliance with the Auctioneers Rule. Such failure negates and vitiates the intended actions. The Court of Appeal highlighted the said position in the case of Lakeland Motors Limited Vs Harbhajan Singh Sembi[1998]eKLR]. 25.The next issue relates to the fact that even though it was contended that the instructing client, is the registered owner of the suit property, no evidence has been exhibited. Surely, the applicant herein ought to know better. A court of law does not issue orders [and more particularly, eviction orders] on the basis of assumption; speculation; and hypothesis. Conclusion 26.Flowing from the foregoing, I come to the conclusion that the application beforehand is not only premature and misconceived, but constitutes an abuse of the due process of the law. Moreover, it is apparent that the applicant herein was being used to execute a non-existent eviction order. Final Orders 27.In the premises, and for the reasons highlighted in the body of the ruling, the final orders that commend themselves to me are:i.The Application dated 08.04.2026 be and is hereby struck out.ii.No orders as to costs. 28.It is so ordered. DATED, SIGNED AND DELIVERED AT ISIOLO THIS 14TH DAY OF MAY, 2026OGUTTU MBOYA, FCIArb;CPM [MTI-EA]JUDGE.In the presence ofCourt Assistant: Mukami/ZakayoSamuel Karithi Ruligi – the applicantN/A for the respondent