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ELCDismissedNot stated in the judgment (application within a suit at Kakamega)· [2017] KEELC 1766 (KLR)

Elizabeth Pamelanechesa v Rosalia Italia (Environment & Land Case 194 of 2017) [2017] KEELC 1766 (KLR)

Environment and Land Court
26 September 2017
NMN. A. MATHEKA
539 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kakamega court refused to evict a farmer without a full hearing, showing Kenyan courts will not order eviction on paper evidence alone when related cases are pending.

What this practically means

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Executive summary

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The plaintiff/applicant, Elizabeth Pamela Nechesa, brought an ex-parte application under Order 39 Rule 1 of the Civil Procedure Rules 2010 and Section 3A of the Civil Procedure Act seeking an eviction order compelling the defendant/respondent to vacate land parcel KAKAMEGA/SEREM/10 measuring 0.42 hectares, with the O.C.S. Serem police station to provide security for compliance, and costs. She asserted she was the absolute registered owner, having acquired the parcel through a certificate of confirmation of grant issued in Hamisi Law Courts Succession Cause Number 13 of 2015 in respect of the estate of her late husband, Samuel Lusichi Amakanga, and that the respondent, a stranger to her, had encroached on and was cultivating the land without any colour of right, causing her irreparable loss. The respondent was served but did not attend court, and the matter proceeded exparte. The court, N.A. Matheka J, considered the submissions and supporting affidavit but declined to grant the eviction orders. The judge found the application lacked merit at that stage, holding that the matter would need to go to full hearing to determine whether an eviction order was justified, and noted the admitted existence of a pending succession cause between the same parties in the Hamisi Law Courts. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether eviction could be ordered ex-parte on the pleadings and affidavit evidence before the court

Holding

The application was dismissed; eviction was premature and required a full hearing

Reasoning

The applicant relied on her registration as absolute owner of KAKAMEGA/SEREM/10, acquired through a certificate of confirmation of grant in Hamisi Law Courts Succession Cause Number 13 of 2015, and alleged trespass by the respondent cultivating the land. The respondent was served but did not attend, and the matter proceeded exparte. The court held that the question whether eviction was justified could not be resolved on the affidavit material at that stage, and noted the pending succession cause between the same parties, so the matter had to proceed to full hearing.

p. 3

Legal principles established

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  • An eviction order will not issue on an interlocutory application where the justification for eviction can only be established at a full hearing, particularly where related proceedings between the same parties are pending

Court orders

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  1. 1.The plaintiff's/applicant's application is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 39 Rule 1
  • Civil Procedure Act Cap 21 Laws of KenyaSection 3A
Jurisdiction invoked
Order 39 Rule 1 of the Civil Procedure Rules 2010 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, "Elizabeth Pamelanechesa v Rosalia Italia (Environment & Land Case 194 of 2017) [2017] KEELC 1766 (KLR)", Case Analysis (2017). Not stated in the judgment (application within a suit at Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1766/eng@2017-09-26

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