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ELCDismissedEnvironment and Land Appeal 8 of 2022· [2023] KEELC 19331 (KLR)

Kilimo v Malenya

Environment and Land Court
10 August 2023
5,835 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed landowners can evict after an unchallenged statutory notice without first getting a court order.

What this practically means

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Executive summary

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The appellant, registered proprietor of Trans-Nzoia Mito Mbili Settlement Scheme/96, served an eviction notice dated 02/08/2021 on the respondent and then filed a miscellaneous application in the Chief Magistrate's Court seeking confirmation of the notice and an order for vacant possession with police enforcement, invoking Sections 152E and 152F of the Land Act, 2012. The respondent opposed, contending that eviction orders of such gravity required a substantive suit in which her right to be heard under Article 50 could be guaranteed, and sought cross-examination of a deponent. By a ruling of 13/04/2022, Hon. S. Makila PM dismissed the application, holding that eviction orders could not issue through a miscellaneous application. The appellant appealed on six grounds, principally that the magistrate failed to apply Sections 152E and 152F, wrongly required a substantive suit, and neglected stare decisis by ignoring her authorities. Nyagaka J reviewed the law on first appeals and interference with discretionary decisions, then held that under the amended Land Act only the recipient of an eviction notice may apply to court for relief under Section 152F(2); an owner who has served a valid notice need not seek judicial confirmation and may evict without a court order if the notice is unchallenged, though a contested claim to ownership must be litigated by way of a suit to safeguard both parties' Article 50(1) rights. The court also held that failure to consider submissions is not fatal since submissions are not evidence, and that the magistrate did not neglect stare decisis given divided authority on the point. All six grounds failed. The appeal was dismissed with costs to the respondent and the trial court's ruling upheld.

Key legal issues

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01

Procedure for giving effect to a notice of intended eviction under Sections 152E and 152F of the Land Act, 2012

Holding

The owner need not apply to court to confirm the notice; only the recipient may apply for relief under Section 152F(2). If unchallenged, the owner may evict without a court order; if the owner wishes to involve the court, a suit must be filed.

Reasoning

The court reasoned that the statutory scheme requires the owner to serve a three-month notice, giving the occupant the opportunity to apply to court for confirmation, variation, suspension or cancellation of the notice and compensation. The Act is silent on any obligation of the owner to seek confirmation, and requiring it would defeat the purpose of the amendment and clog the court system.

p. 9
02

Whether failure to consider submissions and authorities breached stare decisis

Holding

Failure to consider submissions is not fatal; and the trial magistrate did not err in not following the appellant's authorities because courts are divided on the correct procedure and each case turns on its own facts.

Reasoning

The court held that submissions are merely 'marketing tools' and not evidence, citing Court of Appeal authority. On stare decisis, it noted conflicting decisions on whether eviction notices are effected by suit or miscellaneous application, so the magistrate was entitled not to follow the appellant's authorities.

p. 8
03

Whether the trial court wrongly preferred the respondent's right to be heard over the appellant's rights

Holding

The trial court was right: where ownership is contested, a suit is the proper vehicle to safeguard both parties' Article 50(1) rights; no right was hoisted over the other.

Reasoning

The court found the trial court considered both parties' rights and concluded the right to be heard would best be assured by a suit with evidence. There was no evidence the respondent's rights were placed above the appellant's, so the fifth ground failed.

p. 10

Legal principles established

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  • An owner who issues a notice of intended eviction under Section 152E of the Land Act need not move the court to confirm the notice; the recipient of the notice is the one who may apply under Section 152F for relief, failing which the owner may evict without a court order
  • Where there is a contest as to ownership of land, the proper procedure is a substantive suit, which safeguards the parties' right to be heard under Article 50(1) of the Constitution
  • Submissions are not pleadings or evidence; failure by a court to consider them is not fatal to its decision

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondent
  2. 2.The Ruling delivered by Hon. S. Makila PM on 13/04/2022 in Kitale Chief Magistrate's Court Miscellaneous Civil Application No. E052 of 2021 is upheld

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A
  • Civil Procedure Rules, 2010Order 51 Rule 1; Order 19 Rule 2
  • Land Act, 2012Sections 152E, 152F(1), 152F(2)
  • Constitution of KenyaArticle 50(1); Article 159(2)(d)

Cases cited (19)

  • Atik Mohamed Omar Atik & 3 Others v Joseph Katana & Another
    [2019] eKLR

    That eviction notices under the amended Land Act may be effected without a formal court order

  • Margaret Karwirwa Mwongera v Francis Kofi
    [2019] eKLR

    Similar eviction relief granted in a miscellaneous application

  • James Mathuva Makewa v Nzavi Ngului
    [2021] eKLR

    Eviction effected through miscellaneous application

  • Lucy Ghati v Alex Wambura John & Another
    [2019] eKLR

    Eviction relief granted in miscellaneous application

  • Tatecoh Housing and Co-op Sacco Limited v Qwetu Sacco Limited
    [2021] eKLR

    Ordinarily eviction orders are obtained after a full hearing of a case

  • Gitobu Imanyara & 2 others v Attorney General
    [2016] eKLR

    Duty of a first appellate court to re-evaluate evidence and draw its own conclusions

  • Peters v Sunday Post Ltd
    [1958] EA 424

    Appellate court's jurisdiction to review evidence exercised with caution

  • Jackson Kaio Kivuva v Penina Wanjiru Muchene
    [2019] eKLR

    Quoting Peters v Sunday Post on appellate review

  • Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR

    First appellate court's role to re-evaluate, re-assess and re-analyse the record

  • Supermarine Handling Services Ltd v Kenya Revenue Authority
    [2010] eKLR (Civil Appeal 85 of 2006)

    Appellate interference with discretionary decisions only where injudicious or on wrong principles

  • Farah Awad Gullet v CMC Motors Group Limited
    [2018] eKLR

    Interference with discretion only where its exercise was improper

  • Edward Sargent v Chotabha Jhaverbhat Patel
    [1949] 16 EACA 63

    Appeal against discretionary order lies but interference requires injudicious exercise

  • Mbogo and Another v Shah
    [1968] EA 93

    Appellate court should not interfere with discretion unless judge misdirected himself or was clearly wrong

  • Erot v Al-Momin Foundation
    (Environment and Land Appeal 20 of 2022) [2023] KEELC 17557 (KLR)

    Section 152F application is for the notice recipient; contested ownership requires a suit

  • Dodhia v National & Grindlays Bank Limited and Another
    [1970] EA 195

    Importance of stare decisis and binding nature of precedent

  • Patrick Simiyu Khaemba v Kenya Electricity Transmission & another
    [2021] eKLR

    Submissions are 'marketing tools' for parties

  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another
    [2014] eKLR

    Submissions are marketing language and do not constitute evidence

  • Nancy Wambui Gatheru v Peter W Wanjere Ngugi
    Nairobi HCCC No. 36 of 1993

    Submissions are not part of the evidence; a court may decide without them

  • Grace Wangari Mureithi v David Njoroge
    [2021] eKLR

    Illustrating divided judicial approaches to effecting eviction notices

On appeal from
Chief Magistrate's Court at Kitale
Kitale Chief Magistrate Miscellaneous Civil Case No. E052 of 2021
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court in land matters

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Kilimo v Malenya", Case Analysis (2023). Environment and Land Appeal 8 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19331/eng@2023-08-10

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