Kilama v Kidhembe & another

c. That the learned Magistrate erred in law and fact by issuing such draconian orders in a miscellaneous suit, which is an ancillary and supplementary proceeding. d. That the learned Magistrate erred both in law and fact by failing to consider the appellant’s preliminary objection dated 10 January 2023. e. That the learned Magistrate erred in both law and fact, and misdirected himself regarding the law and applicable case law when issuing an eviction order. In fact, the learned magistrate failed to provide reasons for his ruling, contrary to established principles governing what constitutes a proper judgment. f. That the ruling issued by the learned Magistrate lacked any points for the court's consideration, points for determination, and the reasons supporting the decision, thereby violating the mandatory provisions of Order 21, Rule 4 of the Civil Procedure Rules. g. That the learned Magistrate erred in both law and fact by failing to adequately consider the Appellant's case, particularly its written submissions, and proceeded to issue eviction orders on an insubstantial ground. h. That the learned Magistrate erred in law and fact when he arrived at an award that is inordinately and manifestly excessive in the circumstances. 3. The appeal was canvassed through written submissions. I acknowledge the written submissions from learned counsel for the Appellants, Ms. Mwangi, and learned counsel for the Respondent, Mr. Mwangunya, with gratitude, as they went a long way in assisting the court in determining the issues raised in the appeal. 4. Signicantly, the issues raised in the Memorandum of Appeal, as shown by the parties' materials and submissions, focus on whether the trial magistrate misapprehended the law regarding eviction procedures under the Land Laws (Amendment) Act 2016, and who should bear costs. 5. As this is a rst appeal, I am cognizant that, as delineated in the decision of Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123, this court's obligation is to reevaluate the evidence, assess it accordingly, and derive its own ndings of fact and law. This court will deviate from the ndings of the trial court solely if they lacked basis in the evidence on record; if the trial court is demonstrated to have acted upon erroneous legal principles, as armed in Jabane v Olenja (1968) KLR 661; or if its discretion was exercised imprudently, as established in Mbogo & Another versus Shah (1968) EA 93. 6. Ms. Mwangi, for the Appellant, is of the view that the orders the trial court issued were based on a miscellaneous application and that a substantive suit would have been appropriate; besides, the trial court erred in not considering the length of the appellant's stay on the suit property. 7. Mr. Mwangunya, representing the Respondents, believes there was no formal suit before the lower court; instead, it was merely a procedural step and a conrmation of the procedure prescribed by law. 8. In his ruling, the learned magistrate held that he was dealing with an application brought under the provisions of Sections 152A, 152B, 152E, and 152F of the Land Act (as amended) and Regulation 65 of the Legal Notice 280 of 2017 (Land Regulations). 9. In his ruling, he examined the relevant procedural aspects and the implications of a notice to vacate issued pursuant to Section 152E on a party unlawfully occupying private property owned by the proprietor concerning private land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18616/eng@2025-12-10 2

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10. He found that, pursuant to Regulation 65, the notice to vacate was duly issued to the Appellant in the prescribed manner. After the notice expired, the Appellant was required to vacate but refused, prompting the ling of the motion before him and the subsequent ruling now impugned. 11. Drawing from judicial precedents, the magistrate concluded that the formal motion was only for the authentication of the eviction process as envisaged by the law. Because the Appellant did not contest the vacation, the court issued a further 60-day window, allowing the Appellant sucient time to vacate. 12. The application in the trial court was predicated on the Land Act No. 6 of 2012, in particular through the amendments brought by the Land Laws (Amendment) Act 2016. The procedure for evictions in the past was not statutory, and the amendments introduced by the Land Laws (Amendment) Act 2016 have established a self-contained procedure for evictions. 13. The Respondents, under the provisions of Section 152E of the Land Act, issued the requisite notice to the Appellant to vacate, but the Appellant did not respond. The Deputy County Commissioner and OCPD were duly served with the notice in accordance with the requirements of the Land Act. 14. Angote J., in his works under the title "Evictions in Kenya: Which way under The New Constitution and the Land Laws (Amendment) Act 2016?” has succinctly elaborated this process thus: " In cases where private ownership of land is proved, if the owner or the person in charge is of the opinion that ‘a person is in occupation of his or her land without consent, the owner or the person in charge may serve on that person a notice, of not less than three months before the date of the intended eviction’. As earlier noted, where community land is registered, Section 152E of the Land Act is applied. Whereas eviction notice for public and unregistered community land should be published in the Gazette; in a newspaper of national circulation; and announced on radio in a local language, when it comes to private land and registered community land, the notice must be served on the persons aected. Eviction notices for private land and registered community land requires that: a) The eviction notice is in writing and in a national and ocial language. In Kenya, the national language is Kiswahili while the ocial language is English. Whilst the Land Act does not stipulate the language to be used in the eviction notice for public and unregistered community land, it is reasonable that the eviction notice be in a language that the aected persons understand; b) Where a large group of persons are aected, the eviction notice must be published in at least two daily newspapers of nationwide circulation; c) The eviction notice must be displayed in not less than ve strategic locations within the occupied land in the case of large group of persons; d) To ensure that property of the unlawful occupants is protected, the Land Act stipulates that the eviction notice must specify the terms and conditions as to the removal of buildings, the reaping of growing crops and other matters as the case may require; and e) The eviction notice must be served on the deputy county commissioner in charge of the area as well as the ocer commanding the police division of the area.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18616/eng@2025-12-10 3

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15. The esteemed judge proceeds to state that: “ The essence of serving an adequate and reasonable eviction notice is to give the persons aected an opportunity to seek relief in court. If any person or persons has received an eviction notice, they can apply to the Court for relief against the notice. The Court, after considering the eviction notice may: 16. a. conrm the notice and order the person to vacate; b. cancel, vary, alter or make additions to the notice on such terms as it deems equitable and just; c. suspend the operation of the notice for any period which the court shall determine; or d. OrDer for compensation. In circumstances where a party has been duly served with a notice to vacate and does not contest it, as was the situation before the magistrate, and after reviewing the relevant judicial authorities, I am convinced by the decision of Okongo J. in Ringera v Muhindi [2022] KEELC 2481 (KLR), which also inuenced the trial court to grant the reliefs sought, that: “ 5. The foregoing provisions of the Land Act 2012 provide for the evictions of persons occupying land unlawfully. Section 152A of the Land Act 2012 (the Act) prohibits unlawful occupation of land be it private, public or community land. Section 152E of the Act provides that a person unlawfully occupying private land may be served with a notice to vacate. Section 152F provides for relief against a notice of eviction. It gives the person served with notice a right to apply to court for whatever relief deemed appropriate in the circumstances. The court upon considering the application may give appropriate relief. Among the reliefs the court can give are; cancellation, variation or suspension of the notice. The court can also order compensation to be paid. In addition to the said reliefs, the court also has power to conrm the notice and order the eviction of those in illegal occupation of land. 6. In the case before the court, I am satised that the Respondent was served with a notice to vacate the suit property in accordance with the terms of Section 152E of the Act. The Respondent did not move the court for relief as provided for under Section 152F of the Act. I am of the view that since Section 152F of the Act empowers the court grant relief to the person served with an eviction notice and also to conrm the notice and order eviction, it is not inconsistent with the Act for the person issuing the notice to apply to court for conrmation of the notice and an eviction order where the person served with the notice has failed to seek relief from the court. 7. The Applicant’s application is in the circumstances properly before the court. I am of the view that the provisions of Sections 152E to 152 I of the Act were enacted not only to provide a humane manner of carrying out evictions in line with the internationally acceptable standards but also a summary procedure for determining disputes over trespass to land where there is no contestation over title to land. I am satised from the material before me that the Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18616/eng@2025-12-10 4

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is the lawful owner of the suit property. The Applicant has placed evidence before the court showing that the suit property was allocated to him by the Commissioner of Lands and that he complied with the terms of allotment.” 17. The trial court found that the Respondents were the registered owners of the property in question and conrmed that a valid notice to vacate had been issued to the Appellant. The Appellant did not submit any application to contest the eviction notice as required by law. Therefore, the application to conrm the notice to vacate was appropriately presented before the magistrate, who reviewed and decided on it accordingly. 18. I see nothing to fault the Magistrate, as he directed his attention to the relevant provisions of the law and judicial precedents. 19. In the end, I nd no merit in the appeal. The issues raised by the Appellant in the appeal and in the Preliminary Objection should have been raised in a suit or application brought by the Appellant to object to the notice. 20. Appeal dismissed with costs. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON DECEMBER 10, 2025. E. K. MAKORI JUDGE In the presence of: Ms. Mwangi for the Appellant. Mr. Mwangunya for the Respondents. Happy: Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18616/eng@2025-12-10 5

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