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ELCDismissedChuka ELC Miscellaneous Application (Notice of Motion dated 30th January, 2023)· [2024] KEELC 3408 (KLR)

Kagembe v Kamwara (Environment & Land Miscellaneous Case E001 of 2023) [2024] KEELC 3408 (KLR)

Environment and Land Court
25 April 2024
CYC.K Yano
2,780 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The applicant, registered proprietor of L.R No. Tharaka/Chiakariga 'A'/1485, moved the court by Notice of Motion dated 30th January, 2023 under sections 152A and 152B of the Land Act seeking the eviction of the respondent, vacant possession, liberty to appoint a bailiff or auctioneer, and police security during eviction. He relied on the dismissal, on 9th November 2022, of the respondent's adverse possession suit in Chuka ELC No. E001 of 2021 (OS), and on a demand/eviction notice dated 10th February, 2021. The respondent opposed, arguing that no counterclaim for eviction had been pleaded in the earlier suit, that a miscellaneous application is not a competent vehicle for substantive eviction relief, that the notice was non-compliant, and that an appeal was pending in the Court of Appeal. The court, Yano J, identified whether the application had merit and whether eviction orders could issue as the issues for determination. It held that the eviction notice failed to comply with section 152E of the Land Act, which requires not less than three months' notice and service on the deputy county commissioner and the OCPD. It further held that because the applicant never filed a suit or counterclaim for eviction, the dismissal of the adverse possession claim yielded no positive orders entitling him to possession, and that the relief could not be pursued in a miscellaneous application contrary to section 19 of the Civil Procedure Act and Order 3 Rule 1 of the Civil Procedure Rules. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the demand/eviction notice dated 10th February, 2021 complied with sections 152A to 152E of the Land Act

Holding

The notice did not comply with the law - it gave less than three months' notice (requiring vacation by 28th February, 2021) and was not served on the deputy county commissioner or the OCPD as required by section 152E(d).

Reasoning

The court examined section 152E which prescribes a statutory minimum notice period of three months and mandatory service on the deputy county commissioner and the officer commanding the police division. The notice marked MK5 gave the respondent only weeks to vacate and omitted these statutory requirements. Even though the respondent's adverse possession suit had been dismissed, the applicant was still bound to issue a fully compliant notice before seeking eviction.

p. 5
02

Whether eviction orders could be sought in a miscellaneous application without a substantive suit or counterclaim

Holding

The application was incompetent; the applicant neither pleaded a counterclaim for eviction in the earlier suit nor commenced a proper suit, so the miscellaneous application could not sustain the substantive relief of eviction.

Reasoning

Relying on Order 3 Rule 1 of the Civil Procedure Rules and section 19 of the Civil Procedure Act, the court held that civil actions must be commenced in the manner prescribed by law. Because the applicant never filed a suit or counterclaim for eviction, and the dismissed adverse possession suit yielded no positive orders in his favour, the relief sought in the miscellaneous application was without legal foundation.

p. 5

Legal principles established

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  • An eviction notice under the Land Act must be for not less than three months and must be served on the deputy county commissioner and the officer commanding the police division of the area; a non-compliant notice cannot found an eviction order.
  • A dismissal of a claim for adverse possession does not itself entitle the registered owner to eviction where no counterclaim for eviction was pleaded.
  • Before an eviction order is granted, the court must be satisfied on its merits and a person to be affected is entitled to be heard.

Court orders

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  1. 1.The application dated 30th January, 2023 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Land ActSections 152A, 152B, 152E, 152A-152H
  • Civil Procedure ActSections 1A, 1B, 3A, 19
  • Civil Procedure RulesOrder 40 rules 2, 3 and 4; Order 51 rule 1; Order 3 Rule 1
  • Constitution of Kenya, 2010Article 159(2)(b)
  • Land Registration Act No. 3 of 2012Section 28
  • Civil Procedure ActSection 2

Cases cited (5)

  • Margaret Karwirwa Mwongera –v- Francis Kofi
    (2019)eKLR
  • Republic –v- Attorney General & Another Ex-parte James Alfred Koroso
    (2013)eKLR
  • Super marine Handling Services Ltd –v- Kenya Revenue Authority
    (2010)eKLR
  • Julius L. Marten –v- Caleb Arap Rotich
    [2021]eKLR
  • Chuka ELC MISC Application No. E014 of 2022
Jurisdiction invoked
Sections 152A and 152B of the Land Act; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 rules 2, 3 and 4 and Order 51 rule 1 of the Civil Procedure Rules

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, "Kagembe v Kamwara (Environment & Land Miscellaneous Case E001 of 2023) [2024] KEELC 3408 (KLR)", Case Analysis (2024). Chuka ELC Miscellaneous Application (Notice of Motion dated 30th January, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3408/eng@2024-04-25

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