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married to Silas Njeru Munyi in 1980 under Mbeere customary marriage and they formalised their union in a church on 10/5/1986. Her husband died on 23/11/2011. 5. She exhibited the agreement dated 8/1/1986 written in Kimbeere and translated to English and a copy of the green card for the suit land. She also produced the relevant page of the Gazette Notice indicating that letters of administration over her late husband’s Estate were granted to her in 2024. She explained that she settled on the suit land with her late husband in 1980 and that they constructed a matrimonial home on the suit land where she resides to date. She gave a long narrative on the family parcels of land, how they were supposed to be divided and where their relatives were buried. She urged that the issues touching on the suit land could not be delt with in the present application and sought time to file a suit in respect of the portion of the suit land which comprises part of her late husband’s estate. 6. The Applicant filed a supplementary afidavit, which he swore on 20/6/2025 giving particulars and history of the family land and its mode of distribution. He exhibited a death certificate for his late father, correspondence from the administration ofices, afidavit sworn by Naftary Njagi Munyi, minutes of the meeting of the Munyi Kambora family held on 15/11/2023 and the consent on the mode of distribution in Succession Cause No E040 of 2023. 7. Parties canvassed the application through written submissions. The Applicant filed submissions dated 9/4/2025 on the issue as to whether the miscellaneous application was properly before the court and whether the court could grant eviction orders under Section 152E of the Land Act. The Applicant submitted that the legal framework supported his application and relied on Margaret Karwirwa Mwongera v Francis Kofi (2018) eKLR. This court notes that in that suit unlike the present application, the application for eviction was unopposed and the court arrived at the decision that it was well founded in law and on facts. The Applicant urged that the introduction of Section 152A to 152G was to streamline and expedite the process of removing unlawful occupiers. He added that the use of a miscellaneous application especially where there are no contested facts aligned with the overriding objectives under Sections 1B and 3A of the Civil Procedure Act as well as Article 159 of the Constitution. 8. On the substantive application, the Applicant relied on the copy of the title deed, which confirmed that he is the registered proprietor of the suit land. He urged that under Section 26 of the Land Registration Act, the certificate of the title is presumed as evidence that the person named is the absolute and indefeasible owner. He contended that the Respondent’s occupation of the suit land was not based on any legally recognised tenancy, licence or equitable claim. He maintained that the Respondent, who is the widow of his late brother, was allowed to temporarily occupy the portion of the suit land on humanitarian grounds and that she had refused to vacate the land despite being allocated an alternative piece of land being Embu/ Gangara/1793 and later Embu/ Gangara/1922. He submitted that the Respondent’s occupation of the suit land was unlawful and that he had complied with statutory procedure on evictions. 9. The Respondent submitted that the suit land was family land and its registration in the Applicant’s name was subject to the overriding interests of the Respondent and other family members. She pointed out that the suit land was registered in the joint names of the Applicant and Samuel Ndungu Kimani in common undivided shares. She emphasised that she was not an unlawful occupier of private land as envisaged by Section 152E of the Land Act. She reiterated that she occupied the land as of right and that she was already living on the suit land with her late husband and children when the Applicant was registered as proprietor of the land on 7/5/1993. She expressed the wish to file a formal claim against the Applicant for the 3 acre portion of the suit land that she occupies, which according to her is her late husband’s entitlement. She urged the court to cancel the eviction notice while urging that this dispute can only be dealt with in a suit and not an application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8539/eng@2025-11-26 2

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10. The issue for determination is whether the court should grant an order for the eviction of the Respondent from the suit land. The afidavits filed and exhibit attached indicate that the parties are not strangers to each other, they belong to the same family. The arguments and counterarguments made in the afidavits filed by the parties demonstrate that a resolution of the dispute between the parties over ownership and rights to the suit land can only be made in a substantive suit where parties can adduce evidence in the prescribed manner and call witnesses for the court to make a just determination as to whether the Respondent should be evicted from the suit land. 11. The court declines to grant the orders sought in the application dated 17/1/2025. The Respondent is awarded the costs of the application. DELIVERED VIRTUALLY AT EMBU THIS 26TH DAY OF NOVEMBER 2025. K. BOR JUDGE In the presence of: Mr. M. Kiio holding brief for Mr. M. Kimemia for the Applicant Diana Kemboi-Court Assistant No appearance for Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8539/eng@2025-11-26 3

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