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ELCDismissedKericho HCCC No. 32 of 1997 (Originating Summons commenced 30 January 2003)· [2016] KEELC 659 (KLR)

Cheruiyot Chepkwony v Sarah Chesiele Barta & another [2016] KEELC 659 (KLR)

Environment and Land Court
29 July 2016
MSMUNYAO SILA
1,519 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to evict people from land when they were never parties to the case, ruling the applicant must file a fresh suit.

What this practically means

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Executive summary

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This matter arose from an Originating Summons filed on 30 January 2003 in which the plaintiff claimed 2 acres of Kericho/Kimulot/514 by adverse possession and, in the alternative, a declaration of trust. An'gawa J dismissed the claim with costs on 3 August 2009; a notice of appeal was filed on 11 August 2009 but never prosecuted, and the plaintiff died on 6 February 2010, with John Cheruiyot substituted pursuant to an ad litem grant. Following a decree in Kericho HCCC No. 32 of 1997, the land was subdivided into Kericho/Kimulot/1551 and 1552, the 2nd defendant becoming registered owner of the former. He then applied under Order 22 Rule 6 and Section 3A of the Civil Procedure Act for compliance with the 2009 ruling and an eviction order removing Mary Chepkwony, Francis Cheruiyot and John Cheruiyot from Kericho/Kimulot/1551. The respondents opposed, arguing the intended appeal had not been prosecuted and the application was misconceived. Munyao Sila J rejected the delay argument, noting there was no pending appeal, no subsisting stay, and that the court had already dismissed an extension-of-time application. The court found the application incurably defective: Mary Chepkwony and Francis Cheruiyot had no established standing as personal representatives, the deceased could not be evicted, John Cheruiyot held only an ad litem grant, and the land's character had changed from that pleaded. The proper avenue was a fresh eviction suit against the persons on the land. The application was dismissed with no orders as to costs.

Key legal issues

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01

Tenus of an eviction application against non-parties

Holding

The application is not tenable because the named respondents were never parties to the suit and the deceased plaintiff cannot be evicted.

Reasoning

The court noted the original plaintiff's claim (adverse possession and trust) was dismissed and the matter closed. The persons now sought to be evicted include individuals with no recorded role in the suit, and the sole substituted representative holds only an ad litem grant. The land had also changed character following subdivision. The proper remedy is a fresh suit decided on its own merits.

p. 3
02

Whether a stay or status quo order pending appeal was warranted

Holding

No such order could issue as there was no pending appeal and no subsisting stay; the application for extension of time to lodge an appeal had been dismissed.

Reasoning

The grounds of opposition relied on an intended appeal and stay, but the court clarified that no appeal had been filed, its own extension-of-time application had been dismissed, and no stay of execution was subsisting. Consequently, there was nothing pending to preserve by a status quo order.

Legal principles established

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  • Eviction orders can only issue against parties to the suit in which they are sought; persons on the land who were never parties must be sued in a fresh suit.

Court orders

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  1. 1.The application dated 26 April 2016 is dismissed
  2. 2.No orders as to costs
Jurisdiction invoked
Order 22 Rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, Cap 21, Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Cheruiyot Chepkwony v Sarah Chesiele Barta & another [2016] KEELC 659 (KLR)", Case Analysis (2016). Kericho HCCC No. 32 of 1997 (Originating Summons commenced 30 January 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/659/eng@2016-07-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.