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ELCDismissedKisumu ELC Misc Application (application dated 23rd August 2024; related to KSM CM ELC No. E250 of 2023 and KSM ELC Misc App No. E16 of 2023)· [2025] KEELC 1362 (KLR)

Opande v Opondo & another (Environment and Land Miscellaneous Application E042 of 2024) [2025] KEELC 1362 (KLR)

Environment and Land Court
20 March 2025
1,380 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to evict an occupant because who actually owns the land is still disputed in a pending case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisumu (E. Asati, Judge) determined a Notice of Motion dated 23rd August 2024 in which the applicant, claiming to be the registered lessee of plot No. Kisumu Municipality/Block 12/353 since 1998, sought an order for the removal and eviction of the 1st Respondent from the suit property, the appointment of Sparnet Auctioneers to execute the eviction, police security from the OCS Kisumu Central, and costs. The application was grounded on sections 152A, 152B, 152E and 152F of the Land Act, 2012 and sections 3 and 3A of the Civil Procedure Rules. The applicant asserted that the 1st Respondent had illegally entered and occupied a residential house on the plot and that several eviction notices had been ignored. The Respondents, through a replying affidavit sworn by G.O Nyangi, County Director of Housing, opposed the application, contending that the house was an unregistered high-grade housing unit owned by the Ministry of Housing, originally part of the Russian Aided Hospital Nyanza and allocated to the late Doctor Opondo, the 1st Respondent's husband, in 1996, with rent payments continuing after his death. They also pointed to the pending Civil Suit No. E250 of 2023 in the Chief Magistrates Court at Kisumu, which included a defence and counterclaim, and a prior dismissed application, Misc. E16 of 2023. The applicant replied that E250 of 2023 had been withdrawn on 16/5/2024. The court held that a section 152E eviction notice contemplates no contest as to ownership, that withdrawal of a suit does not terminate a counterclaim, and that since the counterclaim seeking a declaration of the Ministry's ownership and cancellation of the applicant's title remained pending, the application was sub judice. The application was declined with no order as to costs, and the counterclaim was directed to be heard to determine the parties' rights.

Key legal issues

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01

Whether eviction under sections 152A-152F of the Land Act is available where ownership of the land is contested

Holding

The court held that the statutory eviction procedure applies only to unlawful occupation without contest as to ownership; where ownership is contested, ownership must first be determined in a suit

Reasoning

The applicant claimed title by certificate of lease while the Respondent asserted the property was government land occupied with governmental permission. Because ownership was contested via a pending counterclaim seeking a declaration that the land belongs to the Ministry of Housing, cancellation of the applicant's title and costs, the court found that the parties' rights could not be adequately adjudicated in a miscellaneous application and that eviction should await determination of the counterclaim.

p. 3
02

Whether the application was sub judice

Holding

The court found the application sub judice because the counterclaim in E250 of 2023 survived the applicant's withdrawal of the suit and remained pending

Reasoning

The applicant argued that his withdrawal of Civil Suit No. E250 of 2023 on 16/5/2024 removed any pending case. Counsel for the Respondent argued that withdrawal does not defeat a counterclaim. The court agreed, noting the counterclaim sought a declaration that the suit land belongs to the Ministry of Housing, cancellation of the applicant's title and costs, and that to the extent it remained pending hearing and determination, the present eviction application was sub judice.

p. 3
03

Whether service of the eviction notice under section 152E was effected

Holding

Service of the eviction notice dated 5/8/2024 was proved and was not denied, but this did not avail the applicant given the contested ownership

Reasoning

The applicant filed an eviction notice dated 5/8/2024 and an affidavit of service of Clifford Ouko Gombe, showing the notice was issued to the 1st Respondent and copied to the Deputy County Commissioner and the OCS Kisumu. The Respondent did not deny service. However, because ownership was disputed through the pending counterclaim, compliance with the notice requirement did not justify ordering eviction at that stage.

p. 3

Legal principles established

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  • A section 152E eviction notice under the Land Act applies only where there is no contest as to ownership of the land; where ownership is contested, ownership must be determined in a suit before eviction is dealt with
  • Under the Civil Procedure Act, withdrawal of a suit does not terminate a counterclaim filed in that suit

Court orders

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  1. 1.The Notice of Motion application dated 23rd August 2024 is declined
  2. 2.No order as to costs
Jurisdiction invoked
Sections 152A, 152B, 152E and 152F of the Land Act, 2012 (as amended); sections 3 and 3A 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, "Opande v Opondo & another (Environment and Land Miscellaneous Application E042 of 2024) [2025] KEELC 1362 (KLR)", Case Analysis (2025). Kisumu ELC Misc Application (application dated 23rd August 2024; related to KSM CM ELC No. E250 of 2023 and KSM ELC Misc App No. E16 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1362/eng@2025-03-20

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