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ELCDismissedNot stated in the judgment· [2024] KEELC 7269 (KLR)

Mbaru (Suing on behalf of the Estate of Stephen Mbaru Gitara) v Hirani (Environment & Land Case E409 of 2024) [2024] KEELC 7269 (KLR)

Environment and Land Court
23 October 2024
OMOguttu Mboya
2,377 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you cannot evict someone through a temporary application—eviction orders require a full hearing where both sides present evidence.

What this practically means

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Executive summary

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The Plaintiff/Applicant, Susan Mbaru, the legal administratix of the Estate of Stephen Mbaru Gitara (deceased), brought a Notice of Motion dated 3rd October 2024 under Sections 1A, 1B and 3A of the Civil Procedure Act, Article 40 of the Constitution and Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, seeking vacant possession of property LR No. 209/14479, Grant IR 89160, eviction of the Defendant, police assistance in execution, and costs. She argued she had locus standi as administratix, that the property was registered in the deceased's name, and that the Defendant's occupation was trespass warranting eviction. The Respondent, through grounds of opposition, contended there was no evidence of trespass, and that an eviction order is a substantive order that can only issue after a plenary hearing; the application was therefore an abuse of process. The court framed two issues: whether eviction orders can issue on an interlocutory application, and whether the application abused due process. Relying on The Headmaster Kiembeni Primary School v Baptist Church and Rutongot Farm Ltd v Kenya Forest Service, the court held that eviction orders are substantive and precipitate, cannot issue at an interlocutory stage, and that the Applicant and her counsel were attempting to steal a match by reproducing the Plaint's final reliefs in an application - conduct amounting to abuse of the due process of the court. The court dismissed the application with costs to the Defendant, and reminded practitioners of their obligations under Sections 55 and 56 of the Advocates Act.

Key legal issues

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01

Whether eviction and vacant possession orders can issue at an interlocutory stage

Holding

They cannot; such orders are final and can only issue after a plenary hearing

Reasoning

The court held that eviction orders are substantive and precipitate, requiring the disputants to tender and produce evidence in the conventional manner before judgment. Reproducing eviction reliefs from the Plaint in a Notice of Motion, rather than pursuing them after full hearing, was misconceived. The court adopted Maraga J's dictum in The Headmaster Kiembeni Primary School v Baptist Church discouraging interlocutory applications that would grant permanent injunctions or eviction orders.

p. 3
02

Whether the application constituted an abuse of the due process of the court

Holding

Yes; filing an application seeking eviction orders identical to those in the Plaint was a deliberate attempt to steal a match and abuse due process

Reasoning

The Applicant, having sought eviction in the Plaint, knew those orders could only issue after plenary hearing yet attempted to obtain them by application. Relying on the Supreme Court's decision in Rutongot Farm Ltd v Kenya Forest Service on abuse of process, the court found the application was a calculated scheme to defraud the cause of justice, and cautioned advocates as officers of the court against propagating mischief, citing Sections 55 and 56 of the Advocates Act.

p. 4

Legal principles established

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  • An order for vacant possession and eviction is a substantive and precipitate order that can only issue after a plenary hearing, and cannot be granted on the basis of an interlocutory application.
  • Courts must guard against litigants and counsel procuring final orders at an interlocutory stage; doing so through an application amounts to abuse of the due process of the court.

Court orders

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  1. 1.The Application dated the 3rd October 2024 be and is hereby Dismissed.
  2. 2.Costs of the Application be and are hereby awarded to the Defendant/Respondent.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 42 Rule 6; Order 51 Rule 1
  • Constitution of Kenya, 2010Article 40
  • Advocates Act, Chapter 16, Laws of KenyaSections 55 and 56

Cases cited (4)

  • The Headmaster Kiembeni Primary School vs Baptist Church
    [2005] eKLR
  • Shah v Shah
    (1981) KLR 374
  • Rutongot Farm Ltd v Kenya Forest Service & 3 others (Petition 2 of 2016)
    [2018] KESC 27 (KLR) (19 September 2018) (Ruling)
  • Kenya Section of the International Commission of Jurists v Attorney General & 2 Others
    Criminal Appeal No. 1 of 2012; [2012] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Articles 40 and 159 of the Constitution; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Mbaru (Suing on behalf of the Estate of Stephen Mbaru Gitara) v Hirani (Environment & Land Case E409 of 2024) [2024] KEELC 7269 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7269/eng@2024-10-23

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