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ELCPartially AllowedBusia ELC Misc. Appl. No. E006 of 2023· [2026] KEELC 2518 (KLR)

Agenga v Sikembo & 2 others (Miscellaneous Application E006 of 2023) [2026] KEELC 2518 (KLR)

Environment and Land Court
22 April 2026
LWL. N. Waithaka
2,015 words in judgment
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The bottom line

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A Kenyan court ruled that even an 81-year-old non-owner living on land cannot be evicted without following the legal eviction process under section 152 of the Land Act.

What this practically means

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Executive summary

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The plaintiff sued to evict the three defendants from parcels Bunyala/Mudembi/2711, 2695 and 2712, claiming ownership acquired through court process, including a decision of the Budalangi Land Disputes Tribunal adopted as a judgment of the Senior Resident Magistrate's Court at Busia and upheld through the High Court and Court of Appeal. During the pendency of the suit, the 3rd defendant, an 81-year-old man occupying parcel 2695, was allegedly evicted and his home demolished on 13th January 2026 at about 5.00 a.m. He filed a notice of motion dated 29th January 2026 seeking a prohibitory injunction or conservatory orders over parcel 2695, leave to file a defence and counterclaim out of time, and summons to the area chief of Mudembi Sub-location to testify and produce documents about the demolition. The plaintiff opposed, contending that parcel 2695 no longer exists following subdivision into parcels 3599 and 3600, that the applicant is not the registered owner, and that the injunction prayers were overtaken by events. The court framed one issue: whether the applicant had made a case for the orders sought. The court held that although the applicant is not the owner, his possession was admitted and he was entitled to protection from eviction except through the process under section 152 of the Land Act. It restored the status quo as to use and occupation pending hearing, granted unopposed leave to file the defence and counterclaim within seven days (declining Kshs. 10,000 throw-away costs), and refused the summons to the chief for lack of basis. Costs were placed in cause.

Key legal issues

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01

Whether an occupier of land, even if not the registered owner, is entitled to protection from eviction during the pendency of a suit

Holding

Yes; the applicant was in possession at the time of filing and was entitled to reinstatement of the status quo pending hearing, the statutory eviction process under section 152 of the Land Act not having been complied with

Reasoning

Although the applicant is not the registered owner of Bunyala/Mudembi/2695 or the resultant parcels after subdivision, it was admitted by the plaintiff that he was in occupation when the suit was filed. An occupier enjoys legal protection and can only be removed through the process in section 152 of the Land Act. Since that process was not followed in the eviction, the court restored the pre-suit status as to use and occupation pending hearing of the suit.

p. 11
02

Whether leave to file a statement of defence and counterclaim out of time should be granted

Holding

Granted, the prayer being unopposed; the applicant to file within seven days and the respondent to reply within seven days of service; throw-away costs of Kshs. 10,000/- declined

Reasoning

The prayer for leave was not opposed by the plaintiff, save for a request for throw-away costs of Kshs. 10,000/-. The court granted leave as prayed and set timelines for filing and service of the defence and counterclaim and the reply. It declined the throw-away costs because no basis was established for that award.

p. 12
03

Whether the area chief should be summoned to give evidence and produce documents

Holding

Refused; no basis was made for the orders

Reasoning

The respondent objected that the chief is not a party or a witness and that the court cannot aid a party in gathering evidence. The court agreed that no basis had been made for the orders sought and declined to summon the chief to testify or produce documents relating to the demolition of the applicant's home.

p. 13

Legal principles established

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  • A person in use and occupation of land enjoys legal protection from eviction except through compliance with the process contemplated in section 152 of the Land Act

Court orders

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  1. 1.Status quo as pertains to use and occupation of the suit property restored, pending the hearing and determination of the suit
  2. 2.Leave granted to the applicant to file and serve his statement of defence and counterclaim within seven days of the ruling, with the plaintiff to file a reply to defence and defence to counterclaim within seven days of service
  3. 3.Costs of the application to be in cause

Authorities

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Legislation

  • Land Actsection 152
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court over the suit; application brought in the pending suit (E006 of 2023) seeking interim conservatory/injunctive relief and leave

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, "Agenga v Sikembo & 2 others (Miscellaneous Application E006 of 2023) [2026] KEELC 2518 (KLR)", Case Analysis (2026). Busia ELC Misc. Appl. No. E006 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2518/eng@2026-04-22

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