Kamotho v Kamotho (Environment & Land Case 300 of 2024) [2025] KEELC 1439 (KLR)
The bottom line
#A Nairobi court refused to evict a daughter from family land because her mother's eviction notice gave only 19 days instead of the legally required three months.
What this practically means
#Executive summary
#Key legal issues
#Whether the application is res judicata
The application is not res judicata. The earlier ruling in Civil Case No. E6834 of 2020 dismissed the eviction prayer on the basis that the suit property was still subject to the succession court, so that issue was not determined on its merits.
Res judicata under Section 7 of the Civil Procedure Act requires a final judgment on the merits by a competent court between the same parties over the same subject matter and cause of action. In the earlier suit, the magistrate declined the eviction prayer only because the property was still subject to the succession court, and made no substantive order on it. The subsequent confirmation of grant changed the circumstances, so the matter was properly before this court.
Whether the Plaintiff has a right to evict the Defendant
Yes. The Certificate of Confirmation of Grant vested the suit property in the Plaintiff for life, and during her lifetime she holds the right to exclude and to possession, entitling her to evict the Defendant.
The defendant argued that a life interest under Section 35(1) of the Law of Succession Act is not exclusive possession. The court accepted that the plaintiff's rights are limited under Section 37, and that she holds the estate as trustee for the children. However, the children's rights crystallise only upon determination of the life interest; during the plaintiff's lifetime she may exercise ownership rights, including exclusion and possession, so she has the right to evict.
Whether the court should grant the orders sought
No. Although the plaintiff has the right to evict, she did not comply with Section 152E of the Land Act, which requires a notice of not less than three months and service on the occupier, the Deputy County Commissioner and the police.
The notice relied upon was found to have been drafted on 12th June 2024, giving the defendant only 19 days to vacate by 30th June 2024, far short of the statutory three months. Further, there was no evidence of service of the notice on the defendant, the Deputy County Commissioner, or the officer commanding the police division. Without proof of service, granting eviction would visit injustice on the defendant, so the application was dismissed.
Legal principles established
#- A life interest holder under Section 35 of the Law of Succession Act retains, during her lifetime, the right to exclude and to possession of the property, even though the interest is limited and not absolute ownership.
- Eviction from private land under Section 152E of the Land Act requires a notice of not less than three months, and the court cannot order eviction without proof of service of that notice.
Court orders
#- 1.The Plaintiff's application dated 18th July 2024 seeking eviction and restraining orders is dismissed with costs to the Defendant
- Jurisdiction invoked
- Sections 152A, 152B, 152E, 152F and 152G of the Land Act 2012 read with Sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamotho v Kamotho (Environment & Land Case 300 of 2024) [2025] KEELC 1439 (KLR)", Case Analysis (2025). Environment & Land Case 300 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1439/eng@2025-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.