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Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion Application dated 12.05.2026

Zabelio Kaburu (for Defendant/Applicant) v Plaintiffs/Respondents

Environment and Land Court
15 June 2026
3,084 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court cannot evict anyone through a simple application — eviction must be formally pleaded in a proper lawsuit first.

What this practically means

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Executive summary

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The Defendant, a public utility body engaged in coffee processing, applied by Notice of Motion dated 12.05.2026 for eviction of the Plaintiffs from suit land L.R. No. Abothuguchi/Gitie/437, together with police security from the OCS Mujwa Police Station and costs. The application followed the dismissal of the Plaintiffs' originating summons in which they had claimed ownership of the suit property by adverse possession; the Defendant had extracted and served the decree but the Plaintiffs declined to vacate and demolished the boundary fence. The Plaintiffs, though served, filed no response; leave was granted to canvass legal issues. They argued the application was a disguised attempt to obtain substantive relief never pleaded, was res judicata, and that the court was functus officio. The court framed two issues: whether it had jurisdiction to grant eviction relief never sought in the primary pleadings, and whether eviction orders can issue on an application. Relying on the doctrine that parties are bound by their pleadings, the court held the Defendant, having filed no counterclaim or separate suit seeking eviction, could not obtain eviction through a post-judgment application; that inherent jurisdiction under Section 3A cannot supply an unpleaded relief; and that the growing practice of seeking eviction orders by miscellaneous applications is unorthodox and unknown to law. The application was dismissed with costs to the Plaintiffs, payable as agreed or taxed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court is seized of jurisdiction to grant the orders of eviction which were never sought vide the primary pleadings or otherwise
  2. 2.Whether orders of eviction (if at all) can issue on the basis of an application, in the manner sought

Key legal issues

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01

Jurisdiction to grant eviction never pleaded

Holding

The eviction prayer was mounted in vacuum; the court cannot grant a relief not sought in the pleadings or any counterclaim.

Reasoning

In an adversarial system parties and the court are bound by pleadings. The Applicant, having filed no counterclaim or separate suit seeking eviction after the respondents' originating summons was dismissed, cannot use a post-judgment application to procure eviction. Section 3A inherent jurisdiction cannot override adequate statutory provisions or supply an unpleaded relief.

p. 5
02

Whether eviction can issue on an application

Holding

Eviction is a substantive relief grantable only upon determination of a substantive suit where it is pleaded.

Reasoning

The court noted a growing trend of litigants seeking eviction orders through miscellaneous or post-judgment applications, condemned it as unorthodox and unknown to law, contrary to the doctrine of departure and Order 2 Rule 6 of the Civil Procedure Rules, and warned it could degenerate into anarchy. The correct course under sections 19 of the Act and Order 3 Rule 2 must be followed.

p. 5

Legal principles established

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  • A substantive order of eviction cannot be sought and obtained on the basis of an application or post-judgment application where eviction was not pleaded in the primary suit.
  • The inherent jurisdiction of the court cannot be invoked to grant a relief not sought in the substantive pleadings.
  • Parties are bound by their pleadings; the court can only grant reliefs captured at the foot of the pleadings.

Court orders

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  1. 1.The Application dated the 12.05.2026 be and is hereby Dismissed
  2. 2.Costs of the Application be and are hereby awarded to the Respondents
  3. 3.The costs in terms of clause (ii) shall be agreed upon and in default be taxed in the usual manner

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 3 and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya

Relief refused

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Order for eviction of the Plaintiffs/Respondents from suit land L.R. No. Abothuguchi/Gitie/437

No pleading or counterclaim anchored eviction; a substantive eviction order cannot be procured by a post-judgment application

p. 6

Security from OCS Mujwa Police Station during eviction

Falls with the main eviction prayer, which was dismissed

p. 6

Costs

Costs of the Application awarded to the Respondents, to be agreed upon and in default taxed in the usual manner

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Application dated the 12.05.2026 be and is hereby Dismissed.
p. 6Final orders - dismissal
Costs of the Application be and are hereby awarded to the Respondents.
p. 6Costs
a substantive order of eviction cannot be sought and obtained on the basis of an application. Furthermore, such an order cannot issue on the basis of a post judgment application, particularly, where no such order had been sought in the primary pleadings.
p. 6Eviction orders and pleadings
the inherent jurisdiction of the court cannot be invoked to grant a relief which had not been sought vide the substantive pleadings.
p. 5Inherent jurisdiction

Issues in the judgment

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minor

The judgment lacks a proper case title/case number heading; paragraphs 1-2 are blank and the matter is identified only by the application date

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, "Zabelio Kaburu (for Defendant/Applicant) v Plaintiffs/Respondents", Case Analysis (2026). Notice of Motion Application dated 12.05.2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3821/eng@2026-06-15

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