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ELCDismissedMachakos ELC (application dated 3 September 2025)· [2026] KEELC 1724 (KLR)

Mwania v Muasa & 5 others (Environment and Land Miscellaneous Case E089 of 2025) [2026] KEELC 1724 (KLR)

Environment and Land Court
24 March 2026
1,453 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Even a landowner with a trespasser judgment cannot evict occupants in Kenya without serving a proper Section 152E Land Act notice on occupiers and government officers.

What this practically means

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Executive summary

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The applicant, registered owner of parcel Kithyoko/Kithyoko/4517 held under freehold tenure, moved the Environment and Land Court at Machakos by notice of motion dated 3 September 2025 under Sections 152A, 152B, 152E and 152F of the Land Act and Section 3A of the Civil Procedure Act, seeking eviction of the respondents, delivery of vacant possession, execution of the eviction by Faith Agencies Auctioneers, and police escort and security from the OCS Kithyoko Police Station. She asserted that she had served a statutory eviction notice, that the 90-day notice period had expired without challenge, and that the respondents continued erecting permanent structures. The respondents did not oppose the motion, and Mr Mathoka appeared for the applicant at the hearing. Justice A. Y. Koross framed a single issue: whether the motion met the legal threshold for eviction orders. The court traced the eviction framework introduced by the Land Laws (Amendment) Act 2016, inspired by Mitu-Bell Welfare Society v Attorney General, and set out the requirements of Section 152E of the Land Act and Form LA 57 under Regulation 65 of Legal Notice No. 280 of 2017. Although the applicant held a judgment of 3 November in Machakos ELC Case No. 230 of 2017 declaring most of the respondents trespassers and granting a permanent injunction, the court found no evidence of a compliant Section 152E notice; the tendered 'notice to vacate land affidavit of service' by Watson Kisoi was a deficient return of service. Holding that evictions require adequate and reasonable notice with respect for human rights, fairness and dignity, the court dismissed the motion, ordered the applicant to bear her own costs, and marked the file as closed.

Key legal issues

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01

Whether the applicant complied with the statutory eviction procedure under Section 152E of the Land Act

Holding

The applicant did not; no adequate and reasonable notice under Section 152E was proved, and the return of service by Watson Kisoi was deficient.

Reasoning

Although the applicant holds a prior judgment of 3 November in Machakos ELC Case No. 230 of 2017 declaring the majority of the respondents trespassers and granting a permanent injunction, no notice issued in accordance with Section 152E was tendered in evidence. The 'notice to vacate land affidavit of service' was in substance a return of service, and even if the notices were served — which the court found they were not — the return of service did not satisfy the legal criteria. Compliance with the statutory procedure cannot be circumvented.

p. 4
02

Whether an eviction order should issue against unlawful occupiers of private land

Holding

No; the motion did not meet the legal threshold and was dismissed.

Reasoning

The Land Laws (Amendment) Act 2016 introduced a detailed procedure for evicting persons unlawfully occupying private land, giving effect to constitutional and international standards. The notice requirements in Section 152E of the Land Act and Form LA 57 under Regulation 65 of Legal Notice No. 280 of 2017 must be fulfilled before eviction orders are granted. Since the applicant failed to demonstrate service of a compliant notice on the respondents and relevant government officers, the motion failed notwithstanding the respondents' non-participation.

p. 4

Legal principles established

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  • Evictions from private land require strict compliance with Section 152E of the Land Act, including a notice of not less than three months served on the occupiers, the Deputy County Commissioner and the police.
  • Evictions, forcible or otherwise, must be preceded by adequate and reasonable notice and conducted with respect for human rights, fairness and dignity.

Court orders

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  1. 1.The notice of motion dated 3 September 2025 is hereby dismissed with the applicant bearing her own costs.
  2. 2.This file is hereby effectively marked as closed.

Authorities

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Legislation

  • Land ActSections 152A, 152B, 152E, 152F
  • Civil Procedure ActSection 3A
  • Land Laws (Amendment) Act(generally, 2016 amendments)
  • Legal Notice No. 280 of 2017 (Land Regulations)Regulation 65; Form LA 57
  • Constitution of KenyaArticle 2(5) and (6)

Cases cited (2)

  • Mitu-Bell Welfare Society v Attorney General & 2 others
    [2013] KEHC 6337 (KLR)
  • Kenya Railways Corporation v Birah & 14 others
    [2025] KECA 545 (KLR)
Jurisdiction invoked
Sections 152A, 152B, 152E and 152F of the Land Act; Section 3A of the Civil Procedure Act

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, "Mwania v Muasa & 5 others (Environment and Land Miscellaneous Case E089 of 2025) [2026] KEELC 1724 (KLR)", Case Analysis (2026). Machakos ELC (application dated 3 September 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1724/eng@2026-03-24

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