Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedMiscellaneous Application dated 16th October 2020· [2021] KEELC 2544 (KLR)

Alice Waruguru Gikunju & another v Charles Karani Gikunju & 5 others [2021] KEELC 2544 (KLR)

Environment and Land Court
11 June 2021
2,158 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court ruled you can evict people from land using a simple application when a prior court decision already settled ownership.

What this practically means

#

Executive summary

#
The applicants, joint registered proprietors of land parcel MUTIRA/KAGUYU/6262, moved the court by Notice of Motion dated 16th October 2020 under Sections 152A, 152B, 152E, 152F and 152G of the Land Act seeking a temporary injunction against the respondents, their eviction from the suit land, and police oversight of the eviction. The suit land was carved out of MUTIRA/KAGUYU/3602, registered in the name of Joel Gikunju Gathungu (deceased), whose estate was distributed in Kerugoya Chief Magistrate's Succession Cause No. 434 of 2016. All beneficiaries, including the respondents, were allocated shares in several parcels and the Family Bank account; some vacated their allocated portions, but the respondents remained on the suit land, allegedly causing nuisance, trespass, assaulting a family member and daring the applicants to evict them by court order. The applicants served an eviction notice under Section 152E(1) effective after three months, followed by a reminder notice. The 1st respondent opposed through a replying affidavit contending the application was an abuse of process because the orders required production of evidence in a fresh substantive suit; the 2nd to 6th respondents opposed orally on oath. The court held that ownership of the suit land had already been determined in the succession proceedings and that no substantive suit is required to enforce a decision of a court of competent jurisdiction. The applicant's uncontroverted sworn averments as to the respondents' occupation stood unchallenged. The application was allowed as prayed, with each party bearing her own costs.

Key legal issues

#
01

Whether a miscellaneous application is a competent vehicle for eviction orders founded on an existing court decision

Holding

The application was competent because ownership of the suit land had already been determined in succession proceedings and required no fresh substantive suit

Reasoning

The 1st respondent argued the application was an abuse of process and that orders requiring evidence should be sought in a fresh suit. The court rejected this, holding that the succession court had already distributed the estate and determined ownership of the parcels; the applicants were simply enforcing an existing court order.

p. 5
02

Whether uncontroverted sworn averments by the applicant stood as unchallenged evidence

Holding

The applicant's uncontroverted sworn averments that the 1st respondent had built a house and allocated portions to his children, and that the 5th respondent leased his land, were accepted

Reasoning

The 1st respondent's replying affidavit addressed only the competence of the application and did not controvert the applicant's factual depositions on the respondents' occupation and conduct. The 2nd to 6th respondents made only brief oral remarks opposing the application.

p. 5

Legal principles established

#
  • No substantive suit is required to enforce the decision of a court of competent jurisdiction

Court orders

#
  1. 1.The Notice of Motion dated 16th October 2020 is allowed as prayed, including a temporary injunction against the respondents and eviction of the 1st to 6th respondents from MUTIRA/KAGUYU/6262
  2. 2.Each party shall bear her own costs

Authorities

#

Legislation

  • Land ActSection 152A
  • Land ActSection 152B
  • Land ActSection 152E
  • Land ActSection 152F
  • Land ActSection 152G
Jurisdiction invoked
Sections 152A, 152B, 152E, 152G and 152F of the Land Act No. 6 of 2012

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Alice Waruguru Gikunju & another v Charles Karani Gikunju & 5 others [2021] KEELC 2544 (KLR)", Case Analysis (2021). Miscellaneous Application dated 16th October 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2544/eng@2021-06-11

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