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ELCDismissedNakuru ELC Miscellaneous Application arising from Notice of Motion dated 8th June 2021 (arising out of Nakuru ELC Civil Suit No. 18 of 2014)· [2021] KEELC 195 (KLR)

Julius L Marten v Caleb Arap Rotich [2021] KEELC 195 (KLR)

Environment and Land Court
16 December 2021
JMJ M Mutungi
1,841 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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You cannot evict someone from Kenyan land through the fast-track process unless you actually hold title or a court has declared you the owner.

What this practically means

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Executive summary

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The applicant, Julius L. Marten, moved the Environment and Land Court at Nakuru by Notice of Motion dated 8th June 2021 under Sections 152A, 152B, 152E and 152F of the Land Act, 2012, seeking confirmation of an earlier notice of motion and an order evicting the respondent, Caleb Chelimo Arap Rotich, from Plot No. 35 (New No. 831) Oljorai Phase II, with execution by Tango Auctioneers and police security. The applicant relied on the dismissal with costs on 30th April 2020 of the respondent's suit (Nakuru ELC No. 18 of 2014), which had sought an injunction, a declaration that the 2009 sale agreement was a nullity, and eviction. He contended that a conditional stay granted to the respondent lapsed when taxed costs of Kshs.221,082 were not deposited. The respondent opposed, claiming he was never served with the taxation notice and that the court had become functus officio upon delivering judgment. Holding that parties are bound by their pleadings, the court observed that the earlier judgment only dismissed the respondent's suit; it made no declaration of ownership because the defendant never pleaded a counterclaim, leaving no order or decree capable of execution. The applicant holds only a sale agreement, not title. The court further reasoned that where ownership is disputed, the summary procedure under section 152F is unsuitable and a formal suit is advisable, distinguishing authorities where eviction followed because the applicant held title. The application was accordingly dismissed with costs to the respondent on 16th December 2021.

Key legal issues

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01

Whether dismissal of the respondent's suit impliedly validated the applicant's ownership of the suit property

Holding

It did not; the court in the prior suit made no declaration of ownership because the defendant never pleaded a counterclaim, and there is therefore no positive order capable of execution in his favour.

Reasoning

The court in the earlier suit found the plaintiff's case unmerited and dismissed it, but made no declaration that the defendant was owner since no counterclaim was pleaded. Ownership cannot be presumed from the plaintiff's failure. An eviction order under section 152F presupposes undisputed ownership and unlawful occupation; here ownership is disputed and the applicant holds only a sale agreement, so he must first obtain a declaration of ownership and a decree in a formal suit.

p. 2
02

Suitability of the section 152F summary eviction procedure where ownership is disputed

Holding

The summary procedure is unsuitable where ownership is disputed; a formal suit is advisable.

Reasoning

Reading sections 152C, 152D and 152E of the Land Act leaves unclear whether relief under section 152F is sought by formal suit or miscellaneous application. Eviction has far-reaching implications and anyone affected is entitled to be heard. Section 152E envisages no dispute on ownership and unlawful occupation; where ownership is disputed, the summary route is unsuitable.

p. 2
03

Whether the court became functus officio upon delivering judgment

Holding

Recorded as the respondent's contention; the court did not determine it, dismissing the application on the merits instead.

Reasoning

The respondent deposed that the court became functus officio upon delivering judgment and that the application was misconceived and an abuse of process. The court's ruling rested on the absence of a title, a pleading or a decree capable of execution, and on the unsuitability of the summary procedure in a disputed-ownership case, so the functus officio argument was not adjudicated.

p. 3

Legal principles established

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  • Parties are bound by their pleadings and a court cannot grant relief that is neither pleaded nor prayed for.
  • A party who does not hold title and against whom no declaration of ownership has been made cannot obtain an eviction order under section 152F of the Land Act; where ownership is disputed a formal suit, not the summary procedure, is appropriate.

Court orders

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  1. 1.The applicant's Notice of Motion dated 8th June 2021 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Land ActSections 152A, 152B, 152E, 152F, 152C, 152D, 152(1)

Cases cited (4)

  • Margaret Karwira Mwongera -vs- Francis Kofo
    (2019) eKLR
  • James Mathura Makewa -vs- Nzari Nguli
    (2021) eKLR
  • Lucy Ghati -vs- Alex Wambura John & another
    (2019) eKLR
  • Hillarione Kabuteni & Another -vs- George Kiruki Mwamba
    (2019) eKLR
Jurisdiction invoked
Sections 152A, 152B, 152E and 152F of the Land Act, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Julius L Marten v Caleb Arap Rotich [2021] KEELC 195 (KLR)", Case Analysis (2021). Nakuru ELC Miscellaneous Application arising from Notice of Motion dated 8th June 2021 (arising out of Nakuru ELC Civil Suit No. 18 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/195/eng@2021-12-16

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