Mbarak v Mwachibua & 32 others (Environment & Land Miscellaneous Case E052 of 2024) [2025] KEELC 1015 (KLR)

The notice of motion disclosed only one named respondent, contrary to Order 4 Rule 1(1)(c) of the Civil Procedure Rules, which requires the name, description and place of residence of defendants. Further, ownership of the suit property is disputed and the applicant holds only an undivided 1/3 share; the other joint proprietors were not joined. In such circumstances the summary eviction route under section 152F is inappropriate and eviction orders can only issue after a substantive suit.

The certificate of postal search showed the property owned in three undivided 1/3 shares, with the applicant representing only one share. The other proprietors' representatives were not involved, and the respondents were not parties to the National Land Commission proceedings. Relying on Lynette Nasimiyu Wafula and Julius L Marten, the court held that disputed ownership requires a formal suit before eviction orders, in the interest of justice and the respondents' right to be heard.

Under section 27 of the Civil Procedure Act costs follow the event unless the court directs otherwise for reasonable cause. Because the underlying dispute is yet to be resolved, the court considered it fair and just that each party bears its own costs. No costs were requested in the application.