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ELCDismissedMiscellaneous Civil Application 15 of 2023· [2023] KEELC 21480 (KLR)

Kalama v Soso & 5 others

Environment and Land Court
8 November 2023
EME. K. Makori
935 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The applicant, Anderson Shehe Kalama, moved the Environment and Land Court at Malindi by Notice of Motion dated March 6, 2023 seeking eviction of six respondents from parcel Malindi/Marafa/78, delivery of vacant possession, security by the OCS Marafa, and costs. He averred the 13.6-hectare land was allotted to him in 2001 under the Government Settlement Fund Trustees arrangement, a letter of offer issued, fees paid, and title issued in 2007. He contended the respondents, who had occupied and cultivated the land and erected permanent structures for over 20 years, had encroached, and that a statutory notice of eviction under section 152(a-f) of the Land Laws (Amendment) Act 2016 had issued after a notice to quit. The respondents opposed, claiming occupation since 2001, that the land ought to have been allocated to them, and that ownership had to be settled before eviction. Makori J framed a single issue: whether eviction should issue. The court noted the mandatory statutory eviction procedure introduced in 2016, and found the applicant had complied with section 152(e) for private land. However, because the respondents claimed occupation since 2001 and ownership, raising a potential adverse possession claim (over 12 years' occupation), and the applicant conceded their occupation and only obtained title in 2007, the court held eviction had not crystallized; the applicant should have sued for ejectment and had ownership or trespass determined at a full trial. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the applicant had satisfied the statutory preconditions for eviction under section 152(e) of the Land Laws (Amendment) Act 2016

Holding

Although the applicant complied with section 152(e) (three months' notice, service on security team, title annexed), eviction had not crystallized because the respondents' competing claim of ownership/adverse possession required determination at trial

Reasoning

The court accepted the applicant had met the section 152(e) requirements for private land. However, the respondents claimed occupation since 2001 and ownership, raising a possible adverse possession claim (over 12 years). The applicant conceded the respondents occupied and built on the land, and only obtained title in 2007. Such competing claims of title cannot be resolved summarily in an eviction application; a suit for ejectment with a full trial was required.

p. 3

Legal principles established

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  • Section 152 of the Land Laws (Amendment) Act 2016 prescribes mandatory guidelines and timelines before eviction can issue
  • Where a person in occupation claims ownership or adverse possession, eviction cannot issue until that issue is determined by a court after trial

Court orders

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  1. 1.The Notice of Motion dated March 6, 2023 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Land Laws (Amendment) Actsection 152(a-f), particularly 152(e)
  • Land Actsection 7
Jurisdiction invoked
Environment and Land Court jurisdiction over land matters (eviction under section 152 of the Land Laws (Amendment) Act, 2016)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kalama v Soso & 5 others", Case Analysis (2023). Miscellaneous Civil Application 15 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21480/eng@2023-11-08

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