Loice Wambui & Others Co. Ltd v Kipketer Chumo & another

Cherono Jepkosgey and Company Advocates (The 2 nd application herein). 2. Notably, the firm of Kipruto Mabalu Advocates replaced the firm of Cherono Jepkosgey and Company Advocates for the defendants/applicants by the consent dated 21 st September 2026. 3. In the first application, the Plaintiff seeks the following orders: a) This Honourable court be pleased to issue an order for eviction/vacant possession of all the parcel or piece of land known enforcement as of LR the No. Nandi/Ndalat/633 Judgement delivered on in 20 th November 2024, and the resultant decrees issued on the 7th day of February 2025, in favour of the Plaintiff/decree. b) M/S Francis Gitau T/A Femfa Auctioneers who are duly licenced and have the jurisdiction of this Honourable Court do evict the 1st and 2nd defendants, their families and/or relatives and any other person claiming under them in unlawful occupation on their behalf of all that piece of KAPSABET ELCLC E009 OF 2023 parcel of land RULING known as LR. No. 2

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Nandi/Ndalat/633 and place delivery and possession of the same to the Plaintiff/Judgement creditor forthwith. c) The Officer Commanding Kipkaren Saliant Police Station (OCS) do provide security to the aforesaid auctioneers and the Judgement/creditor during the eviction and/or vacant possession. d) The costs of the incidental to this application be met by the defendants jointly and severally. 4. The foundational basis of the first Application are grounds on its face which include; a) That a judgement and a decree have been passed and/or issued by this Honourable court pursuant to judgement delivered on the 24th November 2024. b) That the defendants/respondents and their legal representatives were present and have the knowledge of the judgement and the decree and the legal consequences and in my application of the same in toto. KAPSABET ELCLC E009 OF 2023 RULING 3

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c) That despite notices and reminders that are oral and in writing the defendants have ignored, failed and refused to vacate on their own motion as ordered by the court. 5. The Application was further supported by the affidavit of eight paragraphs sworn by LOISE WAMBUI KARANJA who averred in part, that judgment was self-explanatory and that the defendants were given ninety (90) days to vacate from the suit property but that they ignored, neglected or refused to do so. That the judgment creditor has offered the defendants the option to buy the suit property at KES. 10,000,000 in the option of vacating the same but they have failed to respond or act hence the application in inevitable and absolutely necessary. 6. The Defendants/Respondents opposed the first application through their grounds of opposition dated 25 th May 2026 in which they stated. Inter alia; i. The application is premature, incompetent and bad in law for want of compliance with the mandatory provisions of Sections 152A, 152E, 152F, 152G and 152H of the Land Act, 2012 relating to eviction. KAPSABET ELCLC E009 OF 2023 RULING 4

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ii. The Applicant has not demonstrated compliance with paragraph 88 (A) of the judgment delivered on 20 th November 2024 requiring issuance and lapse of statutory notice prior to any eviction process. iii. The orders sought are drastic in nature and offend the Respondent’s constitutional rights under Articles 28, 43, 47, and 50 of the Constitution for want of due process. 7. The Applicants filed their response to the grounds of opposition, together with their written submissions both dated 5th June 2026 by which they contend that the applicant’s application is founded upon a valid judgment and decree of this Court and seeks the enforcement thereof. The provisions of Sections 152A – 152H of the Land Act do not operate to defeat or suspend the execution of a lawful court decree but that they operate in instances of arbitrary evictions. That the requirements set out in the judgment delivered on 20th November 2024 have been complied with and/or that the Respondents have been accorded sufficient notice and opportunity to vacate the suit property. KAPSABET ELCLC E009 OF 2023 RULING 5

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8. Further, it was submitted that regarding the assertion of violation of the Defendant’s fundamental rights, the Applicant submitted that the Respondents participated in the proceedings that culminated in the impugned judgment and therefore that they were given an equal opportunity to be heard and that the dispute was determined by a Court of competent jurisdiction. That the enforcement of a lawful judgment of the Court cannot amount to a violation of fundamental rights. Reliance was made on the case of Muchanga Investments Ltd vs Safaris (Africa) Ltd & 2 others (2009) eKLR, among others, and the applicant implored the court to dismiss the grounds of opposition and allow the 1st application. 9. The Respondents filed their written submissions dated 7 th July 2026 whereby they discussed several issues including compliance with paragraph 88(A) of the judgment delivered on 20th November 2024, and contended that the Applicant neither exhibited any statutory notice issued pursuant to the said paragraph nor any affidavit of service, acknowledgement of receipt, or any evidence KAPSABET ELCLC E009 OF 2023 RULING 6

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showing that the notice contemplated by the Court was ever served upon the Respondents. 10. On the issue of compliance with the provisions of Sections 152A – 152H of the Land Act, the respondents submitted that the provisions were enacted to regulate all evictions and to ensure that they are carried out in a lawful, humane and procedural manner. That this Court incorporated the statutory procedure in its judgment by directing the Applicant to issue a notice requiring vacant possession before undertaking any eviction. They relied on the case of Nicholas Kiptoo Arap Korir Salat vs Independent and Electoral and Boundaries Commission and 7 others (2014) eKLR, among others, and urged the court to dismiss the 1 st application with costs. 11. In the 2nd application, a main prayer sought is stay of execution of the judgment dated 20 th November 2024 pending the hearing and determination of the application and of the appeal. The application is founded on the grounds that there was an appeal filed and subsequently started negotiating with the Plaintiff. That the negotiations KAPSABET ELCLC E009 OF 2023 RULING 7

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delayed their filing of the application for stay and that the applicants/defendants are desirous of pursuing the appeal. 12. The 2nd Application was opposed by the Plaintiff through a Replying Affidavit sworn by LOISE WAMBUI KARANJA on the 18th September 2026 in which she disputed that the Applicant had filed any appeal and questioned why no case number of the said appeal had been provided. She stated that they have made efforts at the Court in Eldoret and have not succeeded in getting any such appeal. She explained that the Applicant had offered to buy the suit property at KES. 10,000,000 which offer was accepted by the Plaintiff but that subsequently, they changed the offer to KES. 5,000,000 which the Plaintiff refused. That the application is an afterthought and brought approximately two years after delivery of judgment thus, it be dismissed with costs. 13. Further affidavit of thirteen paragraphs sworn on 21 st September 2026 with annexed extract of the status shows a pending appeal namely COACA No. E010 of 2025 at Eldoret. KAPSABET ELCLC E009 OF 2023 RULING 8

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14. In the applicants/defendants’ submissions dated 18 th September 2026, this court is urged reference was made to, inter alia, the case of Butt vs Rent Restriction Tribunal (1982) KLR 417 and the court urged to allow the 2 nd application. 15. By the submissions dated 18 th September 2026, learned counsel for the plaintiff cited Butt case (supra) and other authoritative pronouncements and implored the court to dismiss the application with costs. 16. This Honourable Court has anxiously considered the 1st and 2nd applications, the respective parties’ responses together with submissions including all the provisions of the law relied upon and the authorities cited therein. So, are the twinned applications merited? 17. It is notable that the Respondent has raised two fundamental concerns. Firstly, that the Applicant failed to issue a notice to the Respondents as required by the judgment of this Court. Secondly, that the Applicant failed KAPSABET ELCLC E009 OF 2023 RULING 9

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to adhere to the mandatory procedure set under the Land Act, 2012 on evictions. 18. Paragraph 88 (A) of the judgment of this Court delivered on 20th November 2024 reads; “The Plaintiff SHALL (emphasis added) issue a Notice requiring vacant possession under Section 152 of the Land Act to the 1 st and 2nd Defendants, their families and/or relatives and any person in unlawful occupation and when the expiry of the Notice period, the Plaintiff SHALL (emphasis added) be at liberty to evict any person in illegal occupation of NANDI/NDALAT/633” 19. The said Section (152) generally provides for the procedure to be used in evictions from public land, community land and private land. Section 152(E) of the Act provides for eviction from private land. Subsection 1 of the said section requires issuance of a minimum of three months’ notice, equivalent to 90 days. 20. Limb 2 of Section 152 (E) describes that the notice anticipated in limb 1 shall; KAPSABET ELCLC E009 OF 2023 RULING 10

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(a) be in writing and in a national and official language; (b) in the case of a large group of persons, be published in at least two daily newspapers of nationwide circulation and be displayed in not less than five strategic locations within the occupied land; (c) specify any terms and conditions as to the removal of buildings, the reaping of growing crops and any other matters as the case may require; and (d) be served on the deputy county commissioner in charge of the area as well as the officer commanding the police division of the area. 21. The Applicant/plaintiff stated that there were verbal and other correspondence through which they notified the Respondents of the intended eviction. This Court has gone through the correspondence. 22. The defendants asserted that the plaintiff is not entitled to eviction sought in view of the pending appeal before the Court of Appeal at Eldoret. That they deserve stay of execution of this court’s judgment and decree herein. KAPSABET ELCLC E009 OF 2023 RULING 11

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23. Be that as it may, there is the Notice of Appeal dated 29 th November 2024. Indeed, it is common ground that an appeal, COACA No. E010 of 2025 as per extract (‘KCA-1’) annexed to the Further Affidavit sworn on 21 st September 2026 is pending before the Court of Appeal at Eldoret. 24. In that regard, I subscribe to the decision in the case of Samuel Kamau Macharia and another vs Kenya Commercial Bank & 2 others [2012] KESC 8 (KLR) at page 68 that a court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. 25. Moreover, in the case of Republic-vs-Karisa Chengo & 2 others {2017} KESC 15 (KLR), the Supreme Court of the Republic of Kenya was emphatic that; ‘…..Lack of jurisdiction thus renders a court’s decision void as opposed to it being merely voidable. 26. The Supreme Court proceeded to remark as follows; ‘When an act is void, it is a nullity ab initio. It cannot found any legal proceedings and Lord Denning’s decision in the Privy KAPSABET ELCLC E009 OF 2023 RULING 12

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Council case of Benjamin Leonard Macfoy United Africa Company Limited (UK) {1962} AC 152 succinctly makes this point…..’ 27. On the basis of the pending appeal at the Court of Appeal arising from this matter, can this court entertain the 1 st and 2nd applications herein? 28. It is trite law that when a substantive appeal arising from the matter in contest is fully active before a senior appellate court; duplicate motions in lower or parallel benches are completely devoid of jurisdiction over the matter; see John Mutua Ngunjiri & 2 others vs Silas Richard Mukolwe & another {2019} KESC 25 (KLR). 29. On that account, this Honourable Court is devoid of jurisdiction over the 1st and 2 nd applications herein. Plainly, jurisdiction has shifted upward to the Court of Appeal hence, this court is functus officio over the present matter and can no longer entertain these parallel and incompetent applications; see also Sava vs Matano & another {2026} KEELC 4609 (KLR). KAPSABET ELCLC E009 OF 2023 RULING 13

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30. In the result, the 1st and 2nd applications dated 5 th May 2026 and 16th September 2026 respectively, be and are hereby struck out with no orders as to costs. 31. It is so ordered. Dated and Delivered at Kapsabet this 22nd day of September 2026. HON. G M A ONGONDO JUDGE In the presence of; 1. Mr Lawrence Mwangi learned counsel for the plaintiff 2. Ms E. Koech instructed by Mr Maritim learned counsel for the 1st defendant 3. Walter Kipkorir, court assistant KAPSABET ELCLC E009 OF 2023 RULING 14

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