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ELCDismissedNot stated in the judgment (ruling on Notice of Motion dated 29th October 2023)· [2024] KEELC 1702 (KLR)

Opande v Opondo (Environment and Land Miscellaneous Application 16 of 2023) [2024] KEELC 1702 (KLR)

Environment and Land Court
4 April 2024
EAE. Asati
1,080 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked an eviction because the landlord's notice wasn't copied to the local police chief and county commissioner, as the law requires.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kisumu (E. Asati, J) determined a Notice of Motion dated 29th October 2023 in which the Applicant, registered proprietor/lessee of Kisumu Municipality Block 12/353, sought the Respondent's eviction, delivery of vacant possession, police enforcement of the eviction order and costs, invoking Sections 152A, 152B, 152E and 152F of the Land Act 2012. The Applicant claimed the Respondent entered the land illegally and occupied a residential house without authority, and that eviction notices served since 2023 had been ignored. The Respondent opposed via grounds of opposition and a replying affidavit, arguing the application was sub judice to KSM CM Civil Suit No. E250 of 2023 (George Timonthy Opande v Mary Opondo & 2 Others), which concerned the same subject matter between essentially the same parties, and was vexatious and an abuse of process. The Applicant also sought expungement of the Attorney General's documents for want of leave under Article 156(5). The court found that although the eviction notice of 14/3/2023 gave the statutory three months, it failed the mandatory conditions in Section 152E(2) of the Land Act - it was neither copied to nor served on the Deputy County Commissioner or the OCPD, as the affidavit of service confirmed service on the Respondent alone. Under Section 152F(2), the only option was cancellation of the notice. The sub judice objection was also accepted, its factual basis being undenied. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Validity of the eviction notice under Section 152E(2) of the Land Act

Holding

The notice was invalid because, although it gave three months' notice, it was neither copied to nor served upon the Deputy County Commissioner and the OCPD as required

Reasoning

Section 152E(2) prescribes mandatory conditions for a valid eviction notice, including service on the Deputy County Commissioner and the Officer Commanding the Police Division. The court perused the eviction notice dated 14/3/2023 and the affidavit of service of Julius Otieno Raminya, which showed service on the Respondent alone. Section 152F obliges the court to consider Section 152E matters before ruling on an eviction notice. Non-compliance rendered the notice invalid, leaving the court only the option of cancelling it.

p. 2
02

Whether the application was sub judice to Kisumu CM Civil Suit No. E250 of 2023

Holding

The court accepted the sub judice objection: the existence of the other suit over the same subject matter, between essentially the same parties and seeking similar orders, was not denied

Reasoning

The Respondent contended, relying on Section 6 of the Civil Procedure Act and Kinatwa Co-operative Saving and Credit Society Limited v Kinatwa Prestige Ltd, that the application mirrored an existing suit, KSM CM Civil Suit No. E250 of 2023. The court noted that the existence of the other suit was not denied by the Applicant, and treated this as an additional ground for dismissing the application.

p. 3

Legal principles established

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  • An eviction notice under Section 152E of the Land Act must comply with all conditions in Section 152E(2), including service on the Deputy County Commissioner and the Officer Commanding the Police Division, before an eviction order can issue

Court orders

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  1. 1.The application dated 29th October 2023 is dismissed for lack of merit
  2. 2.Costs to the Respondent

Authorities

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Legislation

  • Land Act 2012 (as amended)Sections 152A, 152B, 152E (including 152E(2)), 152F (including 152F(2))
  • Civil Procedure ActSections 3, 3A and 6
  • Constitution of KenyaArticle 156(5)

Cases cited (2)

  • Ringera v Muhindi
    (Environment and Land Miscellaneous Application E128 of 2021) (2022), KEELC 2481 (KLR)
  • Kinatwa Co-operative Saving and Credit Society Limited v Kinatwa Prestige Ltd
    [2021] eKLR
Jurisdiction invoked
Sections 152A, 152B, 152E and 152F of the Land Act 2012 (as amended) and Sections 3 and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Opande v Opondo (Environment and Land Miscellaneous Application 16 of 2023) [2024] KEELC 1702 (KLR)", Case Analysis (2024). Not stated in the judgment (ruling on Notice of Motion dated 29th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1702/eng@2024-04-04

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