Malai & 4 others v Blue Horizon Properties Ltd & 3 others (Civil Suit 467 of 2011) [2025] KEELC 604 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Warrants to Give Vacant Possession dated 21st January 2024 should be recalled, set aside or struck out for non-compliance with Section 152E of the Land Act
The application merited. The court found no statutory eviction notice under Section 152E was ever properly served on the plaintiffs; the Warrants could not be deemed to be the statutory notice and were struck out.
The judgment of 5th October 2023 had ordered that illegal occupants be legally evicted pursuant to Section 152E of the Land Act, implying strict compliance with the statutory procedure. Section 152E(2) requires a written notice in a national and official language, publication for large groups, specification of terms, and service on the Deputy County Commissioner and OCPD. The only notice served was the Notice to Give Vacant Possession dated 22nd January 2024, which did not satisfy these requirements. The defendant also failed to file a counter-claim to pursue eviction within the suit. Accordingly the warrants were irregular.
Whether execution was premature because the Party and Party Bill of Costs was yet to be taxed under Section 94 of the Civil Procedure Act
Raised by the plaintiffs but the court did not expressly determine this head; the application succeeded on the Section 152E ground.
The plaintiffs deponed and submitted that since the Party and Party Bill of Costs remained untaxed, execution was premature under Section 94 of the Civil Procedure Act. The court's analysis focused on the legality of the eviction process under Section 152E of the Land Act and did not make a distinct finding on prematurity of execution under Section 94. The relief granted (setting aside the warrants) rendered the point academic.
Who bears the costs of the application
No orders as to costs, the court reserving its discretion.
The court restated the principle that costs follow the event under Section 27(1) of the Civil Procedure Act, citing Supreme Court and High Court authorities. Despite the plaintiffs' success, the court exercised its discretion to make no order as to costs, without giving detailed reasons for departing from the general rule.
Legal principles established
#- An order for vacant possession is in the nature of a permanent injunction which fully determines the rights of the parties.
- Before eviction from private land under Section 152E of the Land Act, a statutory eviction notice complying with Section 152E(2) must be properly served, and warrants of possession cannot substitute for that notice.
- Costs follow the event under Section 27(1) of the Civil Procedure Act, but the court retains discretion.
Court orders
#- 1.The Notice of Motion application dated 26th September, 2024 by the Plaintiffs is found to have merit and is allowed
- 2.The Warrants to Give Vacant Possession dated 21st January, 2024 are recalled, set aside and/or struck out
- 3.There shall be no orders as to costs
- Jurisdiction invoked
- Article 25 and Article 50(2) of the Constitution of Kenya; Sections 3A and 63(e) and 94 of the Civil Procedure Act, Cap. 21; Order 22 Rule 22 of the Civil Procedure Rules; Section 13(7)(g) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malai & 4 others v Blue Horizon Properties Ltd & 3 others (Civil Suit 467 of 2011) [2025] KEELC 604 (KLR)", Case Analysis (2025). Civil Suit No 467 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/604/eng@2025-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.