I. Introduction
1. What is before the Honourable Court for its determination is the Notice of Motion application dated 2nd October 2025. It was filed by Alice Wambui Magondu, the Applicant herein. The application was brough pursuant to the provisions of Section 13 of the Environment and Land Court Act, No. 19 of 2011, Sections 65 and 67 of the Land (General) Regulations of the Land Act of 2017 and Section 152E of the Land Laws (Amendment) Act, No. 6 of 2016, Sections 1A, 1B, & Section 3A of the Civil Procedure Act, Cap 21, Articles 40, 69(d) & (g), 70 of the 2010 Constitution of Kenya, 2010, Order 51 rule 1 of the Civil Procedure Rules, 2010 and the Court Order of 22nd April 2022 and any other enabling provisions of law.
2. Upon service, the application was opposed by the Respondent through filing of a 20 Paragraphed Replying Affidavit sworn by Makame Kopa Shee, the Respondent herein. On attaining the leave of Court, the averments raised in the said Replying Affidavit were countered by a Further Affidavit dated 6th February 2026 sworn by the Applicant herein. The Honourable Court shall be dealing with these issues indepth at a later stage of this Ruling.
II. The Notice of Motion Application dated 2nd October, 2025
3. The Applicant sought for the following orders:-
a) Spent.
b) That the OCS SHIMONI Police Station do enforce compliance with the Notice to Vacate dated 21st May 2025 and served on 27th May 2025.
c) That the costs of this application be awarded to the Applicant.
4. The application was premised on the grounds, testimonial facts and the averments made by the annexed 16 Paragraphed Supporting Affidavit of ALICE WAMBUI MAGONDU together with annextures marked as “AWM – 1, 2 & 3” annexed herein. She averred as follows that:-
a) She was the registered owner of all that parcels of land known as Kwale/Shimoni/168 area within the County of Kwale County (Hereinafter referred to as “The Suit Land”).
b) On 17th December 2024 this Honourable Court delivered Judgement in Civil Case “ELC (Kwale) NO. 318 of 2021” declaring the Applicant as the registered owner.
c) There had been no further proceedings at the behest of the Applicant after the Judgement was delivered on 17th December 2024.
d) Towards the finalization of the case, the Applicant who was the Defendant in the aforestated suit learnt of the encroachment by the Respondent herein and issued the Respondent with a 3 months’ notice dated 21st May 2025 pursuant to Section 152E of the Land Laws (Amendment) Act, 2016 informing the Applicants that they were expected to vacate the Suit Land.
e) The Applicant further as the owner of the subject suit property served upon the Respondent the Notice to Vacate on 27th May 2025 as required under the provision of Sections 65 and 67 of the Regulations of the Land Act 2017 and Section 152E of the Land Laws (Amendment) Act 2016.
f) Despite the said Notice lapsing, the Respondent was still on the suit property to the continued anguish, angst and helplessness of the Applicant.
g) The Applicant required the protection of this Honourable Court through its Court Bailiff to oversee the eviction of the Respondent who continued to illegally occupy the Applicant's suit property.
h) Unless the Respondent herein was evicted from the said parcel of land, he was most likely to continue with such invasion, trespass, occupation, possession, erection of structures, encroachment and generally interfering with the said property including the legal boundaries; to the detriment of the Applicant who is the legal and rightful owner thereof.
i) The Applicant was the lawful registered proprietor of the suit parcel of land and stood to suffer irreparably through a breach of his constitutional right to private property if the orders sought herein are not granted and the Respondent herein permanently evicted and compelled to demolish the structures thereon forthwith.
j) The Respondent's continued illegal occupation and enjoyment of the said property even after being notified of the Applicant's ownership of the property through a meeting at the Chief's office amounted to a criminal act and an infringement into the Applicant's constitutional right to property and the sanctity of Title.
k) The Honourable Court was well vested with the jurisdiction to determine and grant the Application as sort.
l) The Respondent would not suffer any prejudice if the orders sought were granted as the Honourable Court has already made its pronouncement with regard to the ownership of the suit land.
III. The responses by the Respondent
5. As already indicated, in opposing the application, the Respondent filed a 20 Paragraphed Replying Affidavit dated and sworn on 29th October 2025 by MAKAME KOPA SHEE together with annextures marked as “MSK – 1 & 2” annexed thereto. He averred as follows that:-
a) He was a male adult of sound mind and the Respondent in this matter hence competent to swear this affidavit on his own behalf.
b) He had lived on the suit property all his life having inherited the occupation from his late father and grandfather who settled there long before any alleged allocation or sub - division.
c) The said land was family land and its occupation had been open, continuous and uninterrupted. They had continued to utilise it accordingly.
d) His late father KOPA SHEE MGENI born in the early 60’s grew up on the said land upto his death on 3rd February 2019.
e) The property had traditional shrines used by his family since time immemorial for cultural and customary practices. The said shrines were regularly used by his father for the performance of traditional rites and ceremonies.
f) He was shocked to receive the notice to vacate the suit property and denied attending any meeting before the local area Chief and which issue he had informed the area chief and Assistant County Commissioner.
g) The only meeting that took place prior to the foiling and service of the instant application. That during the said meeting the applicant was informed that since the court case she referred to did not involve the Respondent as a party then the Judgement arising from it could not be lawfully executed against her.
h) The Judgement could therefore not be enforced against him as he was neither a party to the suit nor was he heard. He did not defend his possession and occupation of the suit property.
i) The reliance on the said Judgement to evict him from the suit property would be contrary to established principles of law.
j) The Applicant was a defendant in the earlier suit where she had been sued for allegedly obtaining title to the suit land fraudulently. Although Judgement was entered in her favour in that case, the said Judgement never and could not bind the Respondent as he was a party to those proceedings.
k) Seeking to evict them from the suit land amounted to abuse of the due process of the law and an unlawful attempt to enforce orders against a non – party.
l) He had never been charged for trespass or any offence relating to the said land and his occupation had been open, peaceful, continuous and well known to all neighbouring families as well as the local authorities.
m) He had undertaken extensive development on the suit property and stood to suffer loss in the event that the application was allowed.
n) If at all the land was converted into a Settlement Scheme, the process should have been recognised and protected the rights of existing occupants, ancestral occupants and rightful Claimants in accordance with the applicable laws and procedures.
o) He stood to suffer irreparable harm if the orders sought was granted as this was only home and family depended entirely on it for livelihood.
p) It would be in the interest of justice that the notice of motion is dismissed.
IV. The further affidavit by the Applicant
6. In response to the Respondent's Replying Affidavit the Applicant filed a Further Affidavit dated 6th February 2026 and stated as follows that:-
a) The Applicant reiterated being the registered owner of all that parcels of land known as Kwale/Shimoni/168 area within Kwale County holding a valid Title which ownership was confirmed on 17th December 2024 by this Honourable Court Judgement in Kwale ELC NO. 318 of 2021.
b) She had never received any adverse claim in respect of her ownership of the property and has also never been served with any documents in respect of any party adversely acquiring the property or any part thereof.
c) The Respondent's allegations in respect of the existence of a shrine on her parcel of land was not only false but also unsubstantiated.
d) The Respondent never occupied the entire parcel of land and was an encroachment which took effect after he demolished his grass house as admitted and put up a permanent structure that encroached on the suit property.
e) The Applicant stated that the Respondent's structure largely occupied a road reserve and not a private property save for the parcel of land that encroaches onto her land.
f) The letter produced by the Respondent was not credible and it had been conveniently crafted for purposes of the instant suit.
g) Also that the Respondent lacked the locus standi to defend the suit on behalf of the late father in the absence of any Grant and/or Letters of administration.
h) The Respondent had not placed any document that was capable of challenging her registered proprietary rights which she sought to enforce through the Notice issued pursuant to Section 152E of the Land Laws (Amendment) Act, 2016 which the Respondent confirmed he received.
i) Therefore, that no objection to the said Notice had been pleaded as none existed and her rights under the said provisions of law have crystallised.
j) The Applicants' allegations was aimed at tactfully defeating her rights by having the Honourable Court deviated from the fact the issue at hand which was seeking assistance to evict in light of the Notice issued under the provisions of Section 152E of the Land Laws (Amendment) Act 2016.
k) Unless the Respondent herein was evicted from the said parcel of land, he was most likely to continue with such invasion, trespass, occupation, possession, erection of structures, encroachment and generally interfering with the said property including the legal boundaries; to her detriment as the legal and rightful owner thereof.
l) No prejudice would befall the Respondent if the orders sought are granted because this Honourable Court had already pronounced itself regarding the ownership in respect of the property.
m) The application should be allowed and prayers sought be granted.
V. Submissions
7. On 27th November 2025, in the presence of all the Counsels for the Plaintiff/Applicant and Defendant/Respondent herein, the Honourable Court directed parties to canvass the matter by way of written submissions.
8. Unfortunately, at the time of writing this ruling, only the applicant had complied with the said order. This court will nevertheless proceed to render its verdict on its own merit. Eventually, the Honourable Court rendered its Ruling on 21st April, 2026 accordingly.
A. The Written Submissions by the Applicant
9. The Law firm of Messrs. Muthee & Partners LLP filed their written submissions on behalf of the applicant herein. It was dated 6th February 2026. Mr. Gathu Advocate commenced his submissions by providing the Court with a brief background of the case whatsoever.
10. The Learned Counsel identified three [3] issues for determination as follows. Firstly, whether the provision of Order 2 of the instant application should issue. The Counsel averred that the rights being enforced under the Notice dated 12th May, 2025 had already been crystalised and the Notice ought to be enforced. Despite of this, the Respondent had failed to vacate the sui land. The Letter by the Chief as produced by the Respondent neither conferred any ownership to the land nor defeated registered proprietary rights over the land. Hence the Applicant had formally moved the Court for orders of the police assistance towards eviction of the Respondent after the issuance of the Eviction Notice issued in line of the provision of Section 152E of the Land Act, No. 6 of 2012.
11. Secondly, whether the applicant’s rights had crystallised. It was submitted that upon the Applicant issuing the eviction notice under the provisions of Section 152E of the Land Laws (Amendment) Act 2016 and serving the same, the Respondent never raised any objection and has not denied the existence of the said eviction notice. That the Respondent has not pleaded that he raised any objection to the eviction notice and/or that he exercised his rights under Section 152F of the Land Laws (Amendment) Act 2016. The court was invited to note that the Respondent’s admission to the effect that he has not filed any proceedings towards claiming any ownership of the Applicant’s parcel of land and has not presented any instrument conferring any such ownership and/or rights in his favour. That in light of the admissions by the Respondent that he has not obtained any Orders in respect of adverse possession and neither did his father and/or any other person, a claim for adverse possession cannot attach and/or accrue against the Applicant.
12. The Counsel invited court to thus find that a claim for adverse possession cannot accrue hence the same ought not to form the basis for ordering any order for status quo which will only prejudice the Respondent who has begun facing multiple suits for failure to deliver vacant possession over the subject parcels of land.
13. Thirdly, whether the applicant had proved her case. It was submitted that no conclusive evidence of ownership or proprietary rights has been pleaded or presented by the Respondent and although the matter at hand is not in respect of claims for adverse possession, the court was invited to be guided by the decision in the case of Noor (Suing as the Legal Representative of “Mohamed Jama Noor) – Versus - Muhambi & 49 others (Environment & Land Case 43 of 2017) [2024] KEELC 3290 (KLR) (23 April 2024) (Judgment)” in the event of failure by a party to prove accrue of rights in respect of adverse possession and where the Court stated that the burden of proof was upon a party claiming adverse possession to prove the open continuous and uninterrupted occupation as per the rules of evidence on he who alleges being able to proof.
14. It was submitted that the applicant had proved her case by way of annexing the Notices as seen under Annexure as “AWM – 2” and which service and knowledge of the eviction notice as evidenced by Annexure as “AWM – 3” had not been disputed by the Respondent. Also that she had proved ownership of the suit property by producing the Judgement marked as Annexure as “AWM – 1” which conclusively dealt with the Applicant’s ownership of the property where the Court upheld the Title Deed issued on 17th December 2004. That in light of the aforestated, the Applicant having issued the eviction notice, and the Respondent having failed to object to the same, the Applicant is entitled to the Orders.
15. The applicant submitted that the Respondent being the trespasser whom the Applicant intends to evict by invoking the provisions of Section 152E of the Land Laws (Amendment) Act 2016, it is the Respondent who should give way to the Applicant. Reliance was placed on the decision in the case of “Mildsteel Engineering Works Limited – Versus - Nunda & 3 others (Environment & Land Case E283 of 2022) [2023] KEELC 17903 (KLR) (23 May 2023) (Ruling)” where the Court stated that it was the trespasser who should give way pending the determination of the dispute and it is no answer that the alleged acts of trespass are compensable in damages.
16. Lastly, it was submitted that the Applicant was being denied her constitutional right under the provision of Article 40 of the Constitution to enjoy her property owing to the unlawful occupation by the Respondent. the court was urged to allow the application with costs.
VI. Analysis & Determination.
17. I have carefully read and considered the pleadings herein by the Applicants and Respondent, the relevant provisions of the Constitution of Kenya, 2010 and statures.
18. In order to arrive at an informed, just, equitable and reasonable decision, the Honorable Court has framed the following three ( 3 ) issues for its determination. These are:-
a) Whether the Notice of Motion application dated 2nd October 2025 by the Applicant is merited?
b) Whether the parties are entitled to the reliefs sought.
c) Who bears the costs of the application dated 2nd October 2025?
ISSUE No. a). Whether the Notice of Motion application dated 2nd October 2025 by the Applicant is merited?
19. Under this sub - title, the Honourable Court shall examine the merits of the application and whether the prayers sought can issue. To begin with, Section 152E of the Land Act No. 6 of 2012 requires three months’ notice of eviction to be issued to a person unlawfully occupying private land. Section 152E prescribes as follows with respect to eviction of persons in unlawful occupation of private land:
“(1) If, with respect to private land 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.
(2) The notice under subsection (1) shall -
(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.”
20. I have had the benefit of going through the Judgement of this Court delivered on 17th December 2024 in Kwale ELC NO. 318 of 2021. From its form and substance, the suit was between the Applicant herein who was a 1st Defendant in the suit and one Joel Kipkurui Arap Koech. The Applicant filed a Counter - Claim in the former suit and which was allowed by the court. At paragraph 60 of the said Judgement, the Counter - Claim was allowed in the following terms; -
a. A declaration that the Plaintiff in the Counter - Claim is the lawfully registered owner of LR No Kwale/Shimoni/168
b. A permanent injunction restraining the 1st Defendant in the counterclaim by himself, agent and or servant from entering, remaining and or otherwise interfering with the quiet possession of LR No Kwale/Shimoni/168
c. An order directing the 2nd Defendant to remove the restriction placed by the 1st Defendant in the counterclaim against the title LR No Kwale/Shimoni/168
d. The court declines to grant general damages as prayed since there was no submission in this regard for consideration by the court
e. It is trite pursuant to the provisions of Section 27 of the civil procedure act costs follow the event. Costs are awarded to the 1st Defendant being the Plaintiff in the Counter – Claim”.
ISSUE No. b). Whether the parties are entitled to the reliefs sought.
21. Under this sub – heading, the Honourable Court will examine whether the parties are entitled to the relies sought herein. On this front, the back ground of this case as already provided by the Learned Counsel for the Applicant comes in very handy. It is noted that indeed the suit property was awarded the Applicant, the applicant’s case partially succeeds to the extent that she established that she is the lawful owner of LR No Kwale/Shimoni/168. However, from the proceedings it is clear that the Respondent herein was not a party to the former suit.
22. I have gone through the affidavits both in support and opposition of the application, none of the parties alludes to any relationship being between the Respondent herein and the Plaintiff in the former suit one Joel Kipkurui Arap Koech. It can therefore not be said that the Respondent herein was or is an agent or servant of the said Joel Kipkurui Arap Koech. Clearly, it’s a case of Mis – joinder of party. This is a fundamental mishap in law. The mischief or an oversight at the behest of the Applicant cannot be merely ignored nor wished away as being a procedural technicalities under the provision of Article 159 ( 2 ) ( d ) of the Constitution of Kenya, 2010. In essence, the orders by the court in Kwale ELC NO. 318 of 2021 cannot be implemented nor enforced against the Respondent as it is trite the court cannot issue orders against a party that was not before it as the said orders would be void.
23. In the event that this court proceeds to issue any orders against the Respondent, clearly it will automatically be perceived and indeed amount to an abuse of the court process and a waste of precious judicial time and resources. Time and again, the courts have held that orders should not be made in vain. They are neither, a formality, a proposal, cosmetic nor suggestions. They are to be obeyed and enforced at all costs. In the case of:- “Trusted Society of Human Rights Alliance – Versus - Cabinet Secretary for Devolution and Planning & 3 others [2017] eKLR” the court held as follows:-
“The Court does not, and ought not to be seen to make orders in vain; otherwise the Court would be exposed to ridicule, and no agency of the constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people. A Court order is binding on the party against whom it is addressed and until set aside remains valid and is to be complied with”
24. Also, the Respondent informed the court that any orders against him would be an abuse to his right to be heard on fair hearing as stipulated under the provision of Articles 25 ( c ) and 50 ( 1 ) & ( 2 ) of the Constitution of Kenya, 2010. Indeed, a cardinal rule of and contrary to the Principles of Natural Justice on the right to be heard nor condemned unheard as a fundamental right bestowed to a party. All parties appearing before a court of law or a quasi-judicial process ought to be allowed to present their case and be heard. I am in agreement with the decision of the Supreme Court of Uganda in the case of: “The Management Committee of Makondo Primary School and Another – Versus - Uganda National Examination Board, HC Civil Misc Application No.18 of 2010”, as cited with approval by Lenaola, J (as he then was) in the case of:- “Mandeep Chauhan – Versus - Kenyatta National Hospital & 2 Others [2013] eKLR” to the effect that:
“It is a cardinal rule of natural justice that no one should be condemned unheard. Natural justice is not a creature of humankind. It was ordained by the divine hand of the Lord God hence the rules enjoy superiority over all laws made by humankind and that any law that contravenes or offends against any of the rules of natural justice, is null and void and of no effect. The rule as captured in the Latin Phrase 'audi alteram partem' literally translates into 'hear the parties in turn', and has been appropriately paraphrased as 'do not condemn anyone unheard”
25. For these reasons, therefore, I discern that the application by the Applicant must fail outrightly.
ISSUE No. c). Who bears the costs of the application dated 2nd October 2025?
26. It is now well established that the issue of costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of a legal action or proceedings in any litigation. The proviso of Section 27 of the Civil Procedure Act, Cap. 21 provides that costs should follow the event. By the event means the result or outcome of the legal action or proceedings hereof.
27. In “Reid, Hewitt & Co – Versus - Joseph, AIR 1918 Cal 717 and Myres – Versus - Defries (1880) 5 Ex D 180”, the House of Lords noted that: -
“The expression ‘costs shall follow the event’ means that the party, who, on the whole, succeeds in the action gets the general costs of the action, but where the action involves separate issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular issue should go to the party who succeeds upon it.”
28. In the case of:- “Farah Adwa Gullet – Versus - CMC Motors Group Ltd [2017] eKLR” the Court of Appeal held:
“…it is our finding that the position in law is that costs are at the discretion of the Court seized of the matter with the usual caveat being that such discretion should be exercised judiciously, meaning, without caprice or whim and on sound reasoning.”
29. Similarly, in the case of:- “Devram Manji Daltani – Versus - Danda [1949] 16 EACA 35” the Court of Appeal for Eastern Africa held that costs are awarded to compensate a successful litigant and not to punish an unsuccessful party. Such successful litigant can only be deprived of his costs where his conduct has led to litigation which might have been averted.
30. Given the circumstances of what is presently before this court, the court opines that it will be fair, just and reasonable for each party to bear its own costs.
VII. Conclusion and Disposition
31. Consequently, upon conducting an elaborate analysis of the issues set out herein, this Honourable Court is of the opinion that the application dated 2nd October 2025 is lacking in merit. Thus, specifically, the Honourable Court proceeds to grant the following orders:
a) THAT the Notice of Motion application dated 2nd October 2025 be and is hereby found to be unmeritorious and hence dismissed.
b) THAT each party to bear its own costs.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 21ST ……. DAY OF …APRIL …….2026
Ruling delivered in the presence of: -
a) M/s. Asmaa Maftah, the Court Assistant.
b) Mr. Gathu Advocate for the Applicant.
c) M/s. Amboye Advocate for the Respondent.