Joaness Odhiambo Migwala v Isaac Owuocha & another; Charles Otieno Owuocha & another (Applicants) [2021] KEELC 1884 (KLR)
The bottom line
#A Kenyan court partly cancelled eviction orders because families, including children, were never served the notices the Land Act requires before eviction.
What this practically means
#Executive summary
#Key legal issues
#Whether the court should set aside its own prior eviction orders
The eviction orders were set aside in part, limited to all portions of the suit land except those specified in the order of 16th October 2017, in light of the overarching objectives of the Civil Procedure Act, the Environment and Land Court Act, constitutional values and the right to housing
The court acknowledged, following the respondent's authorities, that it had considerably performed its duties and was functus officio in the ordinary sense. However, exercising its discretion under sections 1A, 1B, 3 and 3A of the Civil Procedure Act and sections 3 and 18 of the Environment and Land Court Act, and guided by Articles 10, 28 and 43(1)(b) of the Constitution and the Supreme Court's holding in Mitu-Bell on the right to housing, it partially set aside the eviction orders while preserving the portions previously awarded to the plaintiff and the RIM rectifications.
Whether the intended eviction complied with the Land Act eviction procedure
The court noted that occupants, including minors and other families, had not been served with the mandatory notices required by sections 152E and 152G of the Land Act, and that children's best interests are paramount
Sections 152A and 152B prohibit unlawful occupation and govern evictions; section 152E prescribes the notice for eviction from private land and section 152F allows affected persons to seek relief from court. The supporting affidavit showed other families, including minors, resided on the land and had not been served with mandatory notices. Article 53(2) on the child's best interests and the Mitu-Bell right-to-holding jurisprudence weighed in favour of interfering with the eviction as framed.
Legal principles established
#- Every individual has the right to housing even if that individual does not own land
- A child's best interests are of paramount importance in every matter concerning the child, including eviction proceedings affecting child occupants
- Evictions of persons in unlawful occupation of private land must comply with the mandatory procedure stipulated in sections 152A–152G of the Land Act
Court orders
#- 1.Set aside eviction orders against the Defendants and the applicants from the suit land, LR No. KANYAMKAGO/KAWERE 1/1010 save for the portions of the same specified in paragraph 9 hereinabove and bearing in mind rectifications to the Registry Index Map (RIM) as ordered by the Court on 16th October 2017
- 2.The parties to bear their own costs of the application
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Sections 3 and 18 of the Environment and Land Court Act, 2015; Articles 10, 28 and 43(1)(b) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joaness Odhiambo Migwala v Isaac Owuocha & another; Charles Otieno Owuocha & another (Applicants) [2021] KEELC 1884 (KLR)", Case Analysis (2021). Notice of motion dated 15th January 2020 (ELC suit re LR No. Kanyamkago/Kawere 1/1010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1884/eng@2021-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.