Ochwa (Suing as administrator ad litem for the Estate of Mishael Ochwa Ojwang’ alias Michael Ochwa Ojwang - Deceased) v Ochola & 8 others (Environment & Land Case 410 of 2017) [2023] KEELC 864 (KLR)

Environment and Land Court

8 February 2023

MKMohammed N. Kullow

1,250 words in judgment

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AI-assisted case brief

·~5 min to read original · ~4 min brief

The bottom line

Kenya's Environment and Land Court ordered eight occupants evicted because they never appealed the 2021 judgment, while a church that had already vacated was spared.

What this practically means

Executive summary

The plaintiff/applicant, through a Chamber Summons dated October 4, 2022, sought orders evicting the defendants from Land Reference Number Kamagambo/Kamwango/597 pursuant to a judgment entered on 09/06/2021, which directed the defendants to remove their structures and hand over vacant possession within 90 days. The applicant, through advocate Lenin Owuor Awino, contended that eviction notices were served on 02/08/2021 following notices dated 27/07/2021 issued under section 152E of the Land Act, yet the defendants remained in occupation. The 1st - 8th defendants did not respond; the 9th defendant, though granted leave, filed no replying affidavit but did file written submissions, claiming it had demolished its Church structure and vacated the land. The sole issue was whether the application was merited. The court found the judgment unappealed, unvaried and unstayed, and thus binding. It held that the eviction notices fully complied with section 152E of the Land Act, having been served on the respondents, the Deputy County Commissioner, the Sub-County Police Commander and other officers. The 1st - 8th respondents offered no explanation for continued occupation and had not sought relief under section 152F. The court confirmed the notices and ordered eviction of the 1st - 8th respondents, directed the Deputy County Commissioner and Sub-County Police Commander Rongo to provide security during execution, and awarded costs against the 1st - 8th respondents only, holding the application untenable against the 9th respondent as overtaken by events.

Key legal issues

Whether the Chamber Summons dated 04/10/2022 seeking eviction was merited

Holding

Merited against the 1st - 8th respondents but not the 9th

Reasoning

Judgment of 09/06/2021 ordering eviction was never set aside, varied or appealed, and no stay was in place. Statutory eviction notices dated 27/07/2021 complied with section 152E of the Land Act, being in an official language, outlining terms for removal of buildings and crops, and served on the respondents and relevant officers. Continued occupation by the 1st - 8th respondents was unjustified and they had not invoked section 152F relief.

p. 3

Whether eviction orders could issue against the 9th respondent

Holding

No - the orders were overtaken by events

Reasoning

The 9th respondent stated, with photographs annexed, that it had demolished the Church structure and vacated the suit parcel. With no contest remaining against it, the orders sought against the 9th respondent were untenable.

p. 3

Legal principles established

An unappealed, unvaried and unstayed judgment remains binding on the parties and may be enforced through eviction
Eviction notices fully compliant with section 152E of the Land Act must be confirmed and eviction ordered under section 152F where occupation is unlawful

Court orders

1.An Order of Eviction issued against the Defendants, their representatives, agents, servants and/or employees or whosoever acting on their behalf, to be evicted from Land Reference Number Kamagambo/Kamwango/597 forthwith
2.An Order directed to the Deputy County Commissioner and Sub-County Police Commander Rongo Sub-County to give security to the Plaintiff, auctioneer and/or court bailiff during execution of the warrants of eviction
3.Costs of the Application borne by the 1st - 8th respondents

Authorities

Legislation

Land Actsection 152E
Land Actsection 152F(1)

Jurisdiction invoked: Sections 152E and 152F of the Land Act; enforcement of a prior judgment of the same court

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Ochwa (Suing as administrator ad litem for the Estate of Mishael Ochwa Ojwang’ alias Michael Ochwa Ojwang - Deceased) v Ochola & 8 others (Environment & Land Case 410 of 2017) [2023] KEELC 864 (KLR)", Case Analysis (2023). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/864/eng@2023-02-08

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