Muchina v Micere (Environment and Land Case 94 of 2016) [2026] KEELC 1400 (KLR)

4. 5. The issues for determinations by the court in this application are as follows: a. Whether the defendant has met the threshold for review/amendment of the order of 4th March 2024. b. Who pays the costs? The court has carefully considered the grounds on the notice of motion, the afidavit evidence by both parties, oral submissions by the parties' learned counsel, the record and comes to the following determinations: a. That the copy of the judgment delivered on 18th June 2021, the plaintifi commenced this suit against the defendant vide the originating summons dated 24th June 2016, which was opposed by the defendant vide her replying afidavit filed on 15th August 2016. This suit was consolidated with Wang’uru PMCC No. 89 of 2016 for hearing. The court determined the suits and ordered as follows: 1. The plaintifi’s originating summons dated 24th June 2016 is hereby dismissed with costs. 2. A declaration that the plaintifi is unlawfully occupying Land Parcel No. Kiine/ Sagana/3362. 3. An order for eviction of the plaintifi, Emmanuel Njogu Muchina from the defendant’s land parcel Number Kiine/Sagana/3362. 4. The plaintifi to pay the defendant mesne profits assessed at Kshs. 100,000/= plus interest till payment in full. 5. The costs of this suit and counterclaim to be borne by the plaintifi.” b. The record further confirms that the defendant subsequently filed an application that was heard and the orders of eviction and demolition issued on 4th April 2024 inter alia directed that “OCS, Sagana Police Station” to provide security during the exercise. It is this part of the order that the defendant/applicant seeks to be reviewed/amend to instead require security to be provided by Kiamachiri Police Station, which is the station nearest the suit property. c. The plaintifi/respondent has not presented any materials or evidence that points to the contrary to that by the defendant/applicant on the proximity of the suit land to Kiamachiri Police Station as opposed to Sagana Police Station. All the plaintifi/respondent states is that he has no other residential home and would be prejudiced if the application is granted and he is evicted and demolition carried out. He also states that granting the application would prejudice his appeal. Considering that the judgment in this suit was delivered on 18th June 2021, and it has not been successfully appealed against or reviewed, the plaintifi/respondent’s claim that his appeal would be rendered nugatory can only be taken as an afterthought. d. The court has seen a Notice of Appeal dated 2nd February 2026 filed by the plaintifi and a letter seeking for proceedings of the same date. There is, however, no evidence before the court that the plaintifi has sought for https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1400/eng@2026-03-11 2

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and obtained leave to file an appeal out of time, and therefore there is no valid appeal before this court that is capable of becoming nugatory. The defendant’s/applicant’s application to have the security to be provided by Kiamachiri Police Station instead of Sagana Police Station for being the one within the local limits of the suit property has merit. e. 6. On the issue of costs, Section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya, provides that costs follow the event unless where for good cause the court directs otherwise. In this instance, I do not find any reasonable basis to order difierently and the defendant/applicant being the successful party will have costs. Flowing from the foregoing determinations, the court finds and orders as follows: a. That the order of 4th March 2024 is reviewed by substituting the reference to OCS, Sagana Police Station with OCS, Kiamachiri Police Station, to be the one to provide security during the eviction and demolition exercise on LR Kiine/Sagana/3362. b. The defendant/applicant is granted costs. It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 11TH DAY OF MARCH 2026 S. M. KIBUNJA ELC JUDGE In the presence of: Plaintifi – No appearance Defendant – M/s Ndwiga for Magee Kinyua - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1400/eng@2026-03-11 3

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