Golden Century Limited v Josef (Miscellaneous Application E224 of 2024) [2025] KEELC 4397 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled you cannot evict someone through a shortcut application; you must file a full, proper lawsuit.
What this practically means
#Executive summary
#Key legal issues
#Whether the Preliminary Objection met the threshold of a preliminary objection
It was upheld because the manner of commencement of suit and the right to be heard are pure points of law requiring no ascertainment of facts.
Applying Mukisa Biscuit Manufacturers as restated in Hassan Ali Joho, the court found that the objection challenged the mode of suit institution and the right to a fair hearing, both pure questions of law. No factual contest was required, so the objection was properly before the court and was merited.
Whether eviction orders can be sought by way of a miscellaneous application
No - such orders are substantive and final and require a properly instituted suit determined on its merits.
Relying on Scope Telematics, Rockland Kenya, Witmore Investment and Nairobi West Hospital, the court held that where final relief is sought, the application ceases to be interlocutory. Although section 152E of the Land Act prescribes an eviction procedure, the Applicant having elected to move the court by motion, it should have filed a substantive suit; the objection therefore succeeded.
Whether the Respondent's application of 3/3/2025 seeking to set aside the reinstatement orders of 20/02/2025 could be granted
It could not; the court could not sit on appeal over its own ruling (functus officio), and the application became moot with the striking out of the main application.
The application was brought under Court of Appeal provisions (Section 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules) inapplicable to the ELC. It also sought to have the court reverse its own reinstatement ruling, impermissible absent a review or appeal. Having struck out the principal application, the stay application was moot and was struck out.
Legal principles established
#- Eviction orders, being substantive and final in nature, cannot be granted through a miscellaneous application; a party seeking eviction must institute a proper suit.
- A preliminary objection must raise a pure point of law and cannot be raised where facts must be ascertained or judicial discretion exercised.
- The manner of initiating a suit is not a mere technicality but the basis of jurisdiction, and discretion cannot override a mandatory statutory provision.
Court orders
#- 1.The Preliminary Objection dated 28/10/2024 is merited and is upheld
- 2.The Notice of Motion application dated 17/10/2024 is struck out
- 3.The Notice of Motion dated 3/3/2025 is struck out as moot
- 4.Each party to bear their own costs of the respective applications
- Jurisdiction invoked
- Sections 3A of the Civil Procedure Act and Order 40 Rules 3 and 7, Order 51 Rule 1 of the Civil Procedure Rules, 2010 (Applicant's application); Sections 152A–152F of the Land Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Aduda v Adhiambo (Environment and Land Miscellaneous Case E008 of 2025) [2025] KEELC 8596 (KLR)[2025] KEELC 8596 (KLR)10 Dec 2025
Cite this brief
#Cite this brief
Caselaw, "Golden Century Limited v Josef (Miscellaneous Application E224 of 2024) [2025] KEELC 4397 (KLR)", Case Analysis (2025). ELCMISC APPLICATION NO. E224 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4397/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.