Khamisi & 2 others (The administrators of the Estate of Hamisi Juma Male aka Hamisi Juma Malee) v Ger & another (Environment and Land Appeal E016 of 2023) [2024] KEELC 351 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed you cannot start an eviction dispute with a miscellaneous application — file a proper suit — and costs can't be awarded in undefended matters.
What this practically means
#Executive summary
#Key legal issues
#Whether a miscellaneous notice of motion can found an eviction claim
No - a notice of motion in a miscellaneous application is not a pleading; where the claim raises contentious issues of fact it must be brought by a proper suit.
The court reconsidered the trial record as a first appeal and agreed with the trial magistrate that miscellaneous notices of motion and chamber summons are not pleadings for instituting a suit under section 2 of the Civil Procedure Act. The appellant's averments, such as an alleged tenancy offered to the respondents' family, required proof through evidence, which the rules of evidence require to be founded on a proper suit such as a plaint or originating summons.
Effect of non-response to a section 152E eviction notice
Where a section 152E notice has been properly served and no relief is sought under section 152F, no suit need be filed before eviction, provided the eviction is lawful.
Section 152E permits an owner of private land to serve a notice of not less than three months on persons in occupation without consent, with publication and service requirements. Section 152F provides reliefs upon receipt of such notice. The Act is silent on what follows where no action is taken under section 152F, and the court held no suit is then necessary before a lawful eviction.
Costs in an undefended, dismissed application
The order awarding costs to a party who never appeared was wrong; costs follow the event under section 27 of the Civil Procedure Act but no good cause justified awarding costs here.
The respondents never filed appearance or a reply despite service by advertisement in the Standard Newspaper. Section 27 of the Civil Procedure Act prescribes that costs follow the event unless the court orders otherwise for good cause. The court found no good cause to justify costs on an undefended application, and set aside the costs order while otherwise dismissing the appeal.
Legal principles established
#- Where notices have been issued in accordance with section 152E of the Land Act and no relief is sought under section 152F, there is no necessity of filing suit before proceeding with eviction so long as it is done in accordance with the law.
- Where a cause of action raises contentious issues requiring proof of facts, the correct procedure is to file a suit such as a plaint or originating summons.
- Costs should not be awarded in an undefended application dismissed on procedural grounds.
Court orders
#- 1.The appeal succeeds limited to the order on costs, which is set aside.
- 2.Other than on the order of costs, the appeal is dismissed.
- 3.No costs are awarded, the application before the lower court and this appeal having been undefended.
- On appeal from
- Chief Magistrate's Court, Mombasa
- Mombasa CM Land Misc. App. No. E128 of 2022
- Jurisdiction invoked
- First appeal from the magistrates' court under the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khamisi & 2 others (The administrators of the Estate of Hamisi Juma Male aka Hamisi Juma Malee) v Ger & another (Environment and Land Appeal E016 of 2023) [2024] KEELC 351 (KLR)", Case Analysis (2024). Mombasa CM Land Misc. App. No. E128 of 2022 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/351/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.