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ELCDismissedNot stated in judgment (Miscellaneous Application dated 27th June, 2023)· [2025] KEELC 8330 (KLR)

Cherekweny v Cherekweny (Environment and Land Miscellaneous Application E003 of 2023) [2025] KEELC 8330 (KLR)

Environment and Land Court
27 November 2025
4,116 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The court dismissed a landowner's bid to evict a long-time occupant through a shortcut, ruling that disputed ownership must be settled through a full lawsuit, not a quick application.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determined the Applicant's Notice of Motion dated 27th June, 2023, brought under Sections 98(4), 152A, 152B, 152E and 152F of the Land Act, Section 3A of the Civil Procedure Act, Order 40 of the Civil Procedure Rules and Regulation 65 of the Land Registration (General) Regulations, 2017. The Applicant, registered owner of Kericho/Kipchimchim/4420, sought confirmation of an eviction notice, eviction of the Respondent (her co-wife), a permanent injunction against trespass, police security and costs. She averred the suit parcel was a subdivision of her husband's land allocated to her, on which she obtained title in 2013, while the Respondent occupied it despite the dismissal of Kericho ELC Case No. 58 of 2013 in 2018. The Respondent opposed, contending that final eviction and injunction orders cannot issue in a miscellaneous application, that she was never served with an eviction notice, and that having occupied the land since 1979 she is entitled to plead adverse possession. The court framed three issues. It held that eviction proceedings under Sections 152C-152E of the Land Act may be commenced by miscellaneous application depending on the circumstances, but a permanent injunction cannot issue in a miscellaneous application since it determines rights on the merits after evidence. On merit, following Child Welfare Society of Kenya Registered Trustees v Njubi and Julius L Marten v Caleb Arap Rotich, the court held that the Respondent's adverse possession claim created an ownership dispute unsuitable for summary proceedings, and the Applicant should file a plaint. The application was dismissed with costs.

Key legal issues

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01

Whether final orders of eviction and permanent injunction can be granted in a miscellaneous application

Holding

Eviction orders may be sought by miscellaneous application under the Land Act where ownership is undisputed, but a permanent injunction cannot issue in a miscellaneous application; where ownership is disputed, a formal suit is required.

Reasoning

The court surveyed authorities under Sections 152A-152F of the Land Act. Julius L Marten v Caleb Arap Rotich held that where ownership is disputed, the summary 152F procedure is unsuitable and a formal suit advisable, while Kagembe v Kamwara held a miscellaneous application permissible where 152A-152H are complied with. On injunctions, authorities establish an injunction cannot issue in a vacuum without a substantive suit, since a permanent injunction determines rights on the merits after evidence.

p. 9
02

Whether the Applicant's application for eviction has merit

Holding

The application lacks merit because the Respondent raises an adverse possession/ownership dispute which cannot be resolved in miscellaneous proceedings.

Reasoning

The Respondent admitted occupation but claimed she had lived on the parcel since 1979 and was entitled to plead adverse possession. Relying on Child Welfare Society of Kenya Registered Trustees v Njubi, where prescriptive rights are claimed, the appropriate route is a normal suit heard on its merits. The court held this controversy over ownership could not be resolved in these proceedings and the Applicant should proceed by way of a plaint.

p. 10

Legal principles established

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  • Eviction proceedings under Sections 152C, 152D and 152E of the Land Act may, depending on the circumstances, be commenced by way of a miscellaneous application, but a permanent injunction cannot issue in a miscellaneous application.
  • Where ownership of land is disputed, as where adverse possession is pleaded, the summary procedure under Section 152F of the Land Act is unsuitable and a formal suit is advisable.

Court orders

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  1. 1.The Applicant's application dated 27th June, 2023 is dismissed with costs
Jurisdiction invoked
Sections 98(4), 152A, 152B, 152E and 152F of the Land Act; Section 3A of the Civil Procedure Act; Order 40 Rules 1, 2, 3, 4, 5 and 9 of the Civil Procedure Rules; Regulation 65 of the Land Registration (General) Regulations, 2017

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, "Cherekweny v Cherekweny (Environment and Land Miscellaneous Application E003 of 2023) [2025] KEELC 8330 (KLR)", Case Analysis (2025). Not stated in judgment (Miscellaneous Application dated 27th June, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8330/eng@2025-11-27

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