Kenafric Properties Limited v Denyo & 34 others (Environment & Land Case E093 of 2023) [2023] KEELC 17995 (KLR) (15 June 2023) (Ruling)
Neutral citation:
[2023] KEELC 17995 (KLR)
Republic of Kenya
Environment & Land Case E093 of 2023
MD Mwangi, J
June 15, 2023
Between
Kenafric Properties Limited
Plaintiff
and
George Odanga Denyo
1st Defendant
Joyce Kamau
2nd Defendant
Samuel Kisilu
3rd Defendant
Kilonzo Nyamai
4th Defendant
Pastor George
5th Defendant
Victor Odhiambo Ouko
6th Defendant
Samuel Omondi Odhiambo
7th Defendant
Michael Waithaka
8th Defendant
Dennis Muchiri
9th Defendant
Michael Muoki
10th Defendant
Michael Mang’Enyi
11th Defendant
Peter Hassan Rige
12th Defendant
Lucy Achieng
13th Defendant
Leonard Onyango
14th Defendant
Jackson Oketch
15th Defendant
Beatrice Auma Odhira
16th Defendant
Morris Okoth
17th Defendant
Grace Mbonge Kigwa
18th Defendant
Robert Masinga
19th Defendant
Susan Wangari Kanyoro
20th Defendant
George Kiptum
21st Defendant
Kevin Munyao
22nd Defendant
Jackson Mwanzia
23rd Defendant
Gideon Bosire
24th Defendant
George Raini
25th Defendant
Millicent Aoko
26th Defendant
Linet Kanini
27th Defendant
Titus Ndolo
28th Defendant
Meshack Kariithi
29th Defendant
Godfrey Wanyama
30th Defendant
Samuel Gitau
31st Defendant
Euticus Kago
32nd Defendant
Patrick Kigadi
33rd Defendant
Jackline Wambua
34th Defendant
Erasto Omondi
35th Defendant
(In respect to the Notice of Motion application dated 7th March 2023 seeking an order of eviction against the Defendants under the provisions of Order 36 (1) (b) of the Civil Procedure Rules, Section 152 (A), 152(B), 152 E & 152G of Land Laws (Amendment) Act, No. 28 of 2016, sections 3,13 & 19 of the ELC rules 1 &22 of the Practice Directions in the ELC Court)
Ruling
Background of the Plaintiff’s Application.
1.By way of notice of motion application dated March 7, 2023, the plaintiff prays for orders of eviction, summarily against the defendants from all that parcel of land known as LR No 339/109 (IR 95767) registered in the name of the plaintiff. Further that the OCS, Ruaraka Police Station do assist the plaintiff/applicant in enforcing the order once issued. The grounds upon which the application is based are on the face of the application.
2.The plaintiff asserts that it is the lawful owner of the suit property LR No 336/109 (IR 95767) whereby it has enjoyed quiet possession but also faithfully paid the land rates and rent. This was so until the year 2021 when the Nairobi Metropolitan Services (NMS) conducted demolitions at an adjacent parcel of land known as LR No 336/64. The defendants then moved to the edge of the plaintiff’s land and constructed some illegal structures therein thereby trespassing and illegally encroaching onto the plaintiff’s land.
3.It is the plaintiff’s case that it promptly and duly notified the Nairobi Metropolitan Services of the illegal encroachment into its land by the defendants. The Nairobi Metropolitan Services advised the plaintiff to follow the due process of the law to remove the defendants from its land. The plaintiff obliged and therefore affirms that it has complied with the provisions of section 152 E of the Land Act by issuing a 3 months’ notice to the defendants and which was duly published in the Daily Nation Newspaper of February 22, 2022 and the Standard Newspaper of February 22, 2022. Personal service was also duly effected on the defendants by a licensed process server on February 23, 2022.
4.In further compliance with the provisions of section 152 E of the Land Act, the plaintiff through its advocates notified the Deputy County Commissioner, Kasarani Sub-county, Nairobi County Regional Commander, OCPD Ruaraka, OCS Ruaraka and the Director General of the defunct Nairobi Metropolitan Services. The plaintiff avers that it has therefore complied with section 152 E of the Land Act fully.
5.Despite service of the notices upon the defendants, the plaintiff alleges that the defendants have failed and declined to comply and have continued to illegally occupy the suit property blatantly violating the plaintiff’s right to its property under article 40 of the Constitution.
6.The defendants had attempted to challenge the notices issued to them by the plaintiff by filing a case ELCC E 185 of 2022 (Shadrack Juma Nyambu suing on his own behalf and on behalf of the residents of Baba Dogo Community v Kenafric Properties Ltd & others) but the suit was struck out with costs on January 19, 2023. The plaintiff has attached a copy of the ruling to the supporting affidavit.
7.The application is further supported by the affidavit of Bharatkumar Velji Punja Shah.
Service Upon The Defendants.
8.On March 23, 2023, the court directed service upon the defendants by way of substituted service. The plaintiff was ordered to serve both the summons to enter appearance and the notice of motion application clearly indicating the date for inter partes hearing. The court on April 27, 2023 confirmed service and proceeded to hear the application by the plaintiff by way of oral submissions. The defendants despite the service did not enter appearance nor file a response to the notice of motion application.
Submissions By The Advocate For The Plaintiff.
9.Mr E. Mwangi advocate for the plaintiff in his submissions reiterated the grounds in support of the application. He submitted that the ownership of the suit property was not in dispute pointing out the plaintiff’s ownership documents as evidence of ownerships. He further emphasized that the plaintiff had complied with the provisions of section 152 E of the Land Act to the letter.
10.The defendants’ attempt to challenge the notices issued by the plaintiff to them in court in ELCC E185 of 2022 failed after the case was struck out with costs. A copy of the ruling is attached to the supporting affidavit. The plaintiff’s advocate therefore urged the court to allow the application.
Issues For Determination.
11.Having considered the notice of motion application together with the supporting affidavit thereof and the submissions by the plaintiff’s advocate, the court is of the view that the only issue for determination is whether the plaintiff’s application is merited.
Analysis and Determination.
12.Under the provisions of order 36 rule 1 of the Civil Procedure Rules, a plaintiff who seeks judgement for a liquidated demand with or without interest, or the recovery of land, with or without a claim for rent or mesne profits, can apply for summary judgement. The plaintiff’s case is one for recovery of land as elaborated earlier on. The plaintiff is the lawful owner of the suit property LR No 336/109 (IR 95767) and seeks to remove the defendants from the suit property on the basis that they have unlawfully occupied a portion of it without any basis or justification whatsoever.
13.The plaintiff has in the supporting affidavit in great details explained the steps it has taken to comply with the mandatory provisions of the Land Act. Compliance with the provisions of section 152 of the Land Act is a prerequisite to the grant of orders of eviction.
14.Section 152E of the Land Laws (Amendment) Act No 28 of 2016 clearly provides that the notice to vacate must be issued not less than three months before the intended date of eviction.
15.The section provides as follows: -
16.The section was enacted after the observation by Mumbi J (as she then was) in the case of Mitu-Bell Welfare Society v Attorney General & 2 others [2013] eKLR, that,
17.The UN guidelines requires appropriate procedural protection and due process as essential aspects of all human rights and especially in relation to a matter such as forced evictions which directly invoke a large number of rights recognized in the two International Covenants on Human Rights. The procedural protections which should be applied in relation to forced evictions include:a.an opportunity for genuine consultation with those affected;b.adequate and reasonable notice for all affected persons prior to the scheduled date of eviction;c.information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected;d.especially where groups of people are involved, government officials or their representatives to be present during an eviction;e.all persons carrying out the eviction to be properly identified;f.evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise;g.provision of legal remedies; and(h)provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.
18.In the case of Solome Naliaka Wabwile v Alfred Okumu Musinaka [2022] eKLR, Olao J stated that;
19.In the case of Atik Mohamed Omar Atik & 3 others v Joseph Katana & another [2019] eKLR J.O. Olola stated as follows on the procedure for eviction of persons unlawfully occupying private, community or public land:
20.I have keenly perused the plaintiff’s suit and the application before me. I am convinced that the plaintiff has fully complied with the provisions of section 152E above. Further, I note that the defendants had an opportunity to challenge the notice of eviction served upon them by the plaintiff in Nairobi ELCC E185 of 2022- Shadrack Juma Nyambu (suing on his own behalf and on behalf of the residents of Baba Dogo Community) v Kenafric Properties Limited and others. The suit was however, after due consideration by the court struck out with costs on January 19, 2023. The defendants despite being served with summons to enter appearance and the application by the plaintiff did not file any response.
21.I consider this a suitable case for entry of judgement summarily. I hereby allow the plaintiff’s application with costs.
22.Accordingly, the court issues an eviction order against the defendants, their respective agents, employees and/or servants, tenants, family members or anyone claiming occupancy rights under the defendants’ title from all that parcel of land known as LR No 339/109(IR 95767) registered in the name of the plaintiff/applicant.
23.The Officer Commanding Station Ruaraka Police Station is directed to assist the plaintiff in enforcing the order.
24.The court further directs that the eviction be done in strict compliance with the law.
25.It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JUNE 2023.M.D. MWANGIJUDGEIn the virtual presence of:Mr. Kimani holding brief for Mr. Elijah Mwangi for the Plaintiff/Applicant.No appearance for the Defendants/Respondents.