REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA
ELC MISC NO E001 OF 2026
SOLOMON MACHARIA.........................................PLAINTIFF
VERSUS
THE B.O.M KARAGOINI NURSERY SCHOOL.........DEFENDANT
RULING:
The suit in this case was commenced by way of a Notice of Motion. The same seeks the following orders: -
1. That this Court issue an Order directing the Respondent and all those claiming under them to vacate and deliver vacant possession of parcel Number NYANDARUA/KARAGO-INI/1179 within a period to be determined by the Court, failing which eviction may be carried out in accordance with the law.
2. That this Court gives an order of demolition directing the Respondent to demolish and remove all unauthorized structures erected on the suit property known as NYANDARUA/KARAGO-INI/1179.
3. That in default of compliance, the Applicant be at liberty to demolish and remove all unauthorized structures erected on the suit property known as NYANDARUA/KARAGO-INI/1179 and recover the costs from the Respondent.
4. The Court do issue an order directing the officer commanding Karai Police Station to provide security during the eviction process to ensure compliance with the Court orders.
5. Any other or further relief as the Court may deem fit, just and expedient in the circumstances.
6. Costs.
The grounds up[on which the Application is brought are that the Applicant is the ;legal representative of the Estate of the late Paul Gichuki K................, the registered owner of NYANDARUA/KARAGO-INI/1179. He further says that the Respondent was allocated parcel No. P1 132 by the Settlement office for the purpose of constructing a school, but the said parcel is now occupied by the Presbyterian Church of East Africa (PCEA). The Respondent unlawfully encroached onto parcel No. NYANDARUA/KARAGO-INI/86 (now 1179) without any legal justification, as the Estate never authorized such occupation.
The Estate after issuing a Demand letter which was not heeded to filed a suit at Nyahururu Principal Magistrates’ Court Civil Suit No. 205 of 2011 for: -
a. A permanent Injunction restraining the Defendant (Margaret Wanjiku Mwangi, Margaret Nyakuhi Macharia and Jane Wangechi Karanja) by themselves, their servants, employees, agents and/or proxies or any other person acting under or on their authority or claiming through or under them from depositing building materials or any other kind of materials, erecting and constructing structures, entering, remaining, using or in any other manner interfering with the parcel of land known and described as L.R NYANDARUA/KARAGO-INI/86.
b. Costs.
c. Any other or other relief as the Court may deem fit and just to grant.
This case was dismissed at a preliminary stage on grounds of insufficient proof of ownership, even though the land was later confirmed as legally owned by the Estate.
After sub-division of the original parcel, 1179 was issued a new Title Deed in the Applicant’s name thereby confirming legal ownership. He further avers that the continued occupation by the Respondent amounts to trespass and infringement of the Estate’s property rights, warranting eviction and permanent injunction relief and that therefore it would be in the interest of justice that the orders sought in this suit be granted to protect further unlawful occupation and encroachment upon private property.
All the above grounds are given in the face of the Application dated 13/6/2025 and also in the attached Affidavit in support sworn by Solomon Macharia, the Appellant on even date. He depones that the family has used all due process to make demands and issue Notices of eviction to the Respondent but this has fallen on deaf ears.
On 9/2/2026, the 1st Respondent issued a Notice of Preliminary objection to the effect that there was no competent suit before the Court from which an eviction can issue and that the Miscellaneous Civil Application is filed against a non-existent body since the ownership and Management of early Childhood Development Education (ECDE) institutions is rested in the County Government and therefore any suit relating to ECDE ought to be filed against the respective County Government.
The Respondent further in the Notice pleads Statutory limitation and the plea of res judicata since there was another similar suit before this one and which was dismissed by the Court. i.e. Nyahururu CMCC No. 205 of 2011 and that no Appeal was preferred against the same.
I will first decide on one fundamental issue to determine whether there is really a suit before the Court. Should it be answered in the affirmative, then I will proceed to the other issues. The Applicant seeks for Orders of eviction against the Respondents. These are rights which must be first and foremost determined. Whether the property from which eviction is sought belongs to the Applicant and if so, whether the Respondent is on the suit land illegally, unlawfully, through trespass and/or through encroachment and whether the Applicant has a right to evict the Respondent. These rights must be determined through a suit. As I held in the case of Nyamira ELC Miscellaneous Case No. E007 of 2023, under Order 3 Rule 1 (1) of the Civil Procedure Rules:
“every suit shall be instituted by presenting a Plaint to the court, or in such other manner as may be prescribed.”
Other ways of presenting a suit in court are by way of: -
• Judicial Review.
• Originating Summons.
• Petition.
• Memorandum of Appeal.
• Originating Motion.
• Appeal.
Not by way of a Notice of Motion. Miscellaneous Civil Application is not one of them. In the Case of Fidelity Bank Limited vs John Joel Kanyali (2014) e KLR the court held as follows: -
“ ……. A Notice of Motion is not a manner prescribed for instituting a suit. It cannot be a pleading as defined in Cap 21 and its Rules. Accordingly, there is no suit before court which suit can sustain the Notice of Motion.”
Similarly, there is no suit in court that is capable of ascertaining the rights of either party or how such rights have been trodden upon and this court cannot proceed with the matter as it is. In the instant Motion, it is difficult to determine the rights of either party and the Applicant is undeserving of the prayers sought. No right can be determined by way of a Notice of Motion. A Notice of Motion is normally for interlocutory issues or execution or any other post – Judgment process. Not to determine rights and therefore there is no suit before me to determine any rights and calling this Court to jump the trial stage and proceed to execution under Orders 22 and 23 of the Civil Procedure Rules is putting a cart before the horse. Even Sections 152A, 152B, 152E and 152F of the Land Act, 2022 does not envisage a situation where you would execute before a right has been ascertained in a trial.
Accordingly, the Notice of Motion dated 13/6/2025 is hereby stuck out and I agree with the 1st Respondent that what is before the Court christened as a suit is grossly incompetent, incurably defective and an abuse of the process of this Court and the same is hereby struck out with costs.
Ruling dated, signed and delivered at Nyandarua this 9th Day of April, 2026.
MUGO KAMAU
JUDGE
In the Presence of: -
Court Assistant: Samson.
Applicant’s Counsel:
Respondent’s Counsel: MR. KAHIGA for the 1st Respondent.