Hillarione Kabuteni & another v Gerge Kiruki Mwamba & another [2019] KEELC 2371 (KLR)
The bottom line
#A Kenyan court struck out an eviction application because the underlying land case had been dismissed and never revived, so there was no suit on which to grant eviction.
What this practically means
#Executive summary
#Key legal issues
#Competence of an eviction application in a dismissed suit
The application was struck out as incompetent because the suit had been dismissed on 27.9.2017 and was never revived, leaving no suit on which eviction orders could issue
The plaintiffs' originating summons for adverse possession was dismissed on 27.9.2017 for non-attendance and efforts to revive it failed. With no subsisting suit and no counterclaim by the defendants, the motion had no foundation in pleadings or any judgment. The court therefore held the application to be bad in law and struck it out with costs to the plaintiffs.
Absence of a counterclaim as a basis for eviction
The application failed because the defendants had never filed a counterclaim seeking eviction
The court noted that the defendants/applicants had not filed a counterclaim to the plaintiffs' adverse possession suit. Without pleadings or a judgment grounding the relief sought, the notice of motion had no legal foundation. The court agreed with the plaintiffs that the application was bad in law as it was not based on any proper claim, pleadings or judgment.
Whether unsuccessful adverse possession claimants are automatically given 6 months to vacate
The court rejected the proposition as unsupported by jurisprudence and distinguished the authority cited
The applicants relied on Edward Mugambi Kairanya vs Jason Mathu Mwongera for the claim that unsuccessful adverse possession claimants are always given six months to vacate. The court held this argument hollow and unsupported, distinguishing the cited case because there the suit was heard to conclusion and a judgment delivered, unlike the present dismissed suit.
Legal principles established
#- A court cannot issue eviction orders in a suit that has been dismissed and not revived
- Eviction relief must rest on a proper claim, pleadings or judgment; a notice of motion without pleadings or a counterclaim is incompetent
- It is not settled law that unsuccessful adverse possession claimants are always given six months to vacate
Court orders
#- 1.The application dated 13.12.2018 struck out for want of competence
- 2.Costs of the application to the respondent/plaintiff
- Jurisdiction invoked
- Sections 3 and 3(a) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hillarione Kabuteni & another v Gerge Kiruki Mwamba & another [2019] KEELC 2371 (KLR)", Case Analysis (2019). Meru HCCC No. 102 of 2012 (Originating Summons filed 25.5.2009 re L.R No. Ntima/Igoki/1720). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2371/eng@2019-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.