Ryoba & 4 others v Mwita & another (Enviromental and Land Originating Summons E027 of 2019) [2025] KEELC 5131 (KLR)
The bottom line
#A Kenyan court refused to evict land occupants because striking out a lawsuit is not the same as winning the case on its merits.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the eviction orders against the Respondents should issue
Key legal issues
#Whether eviction orders should issue following the striking out of the Plaintiffs' adverse possession Originating Summons
No; striking out was not a merits determination and no express eviction direction was made, so the application failed
The court held that the Originating Summons was struck out for failure to comply with Order 37 Rule 7 (annexing an extract of title), a technicality that left the substantive questions of adverse possession - occupation, duration, and whether the defendants' title was extinguished - undetermined. Since no judgment expressly ordered eviction, the striking out could not found an eviction application, which was misconceived and an abuse of process.
Effect of non-compliance with Order 37 Rule 7 of the Civil Procedure Rules, 2010 on an adverse possession claim
Non-compliance justifies striking out the suit at a preliminary stage without determining the merits
The court explained that Order 37 Rule 7 requires a claimant to annex an extract of the defendant's title to demonstrate that the property exists and is registered in the defendant's name. This is a preliminary issue that can be decided even at pre-trial, and striking out for non-compliance does not amount to a dismissal or determination on the merits of the adverse possession claim.
Legal principles established
#- Striking out a suit is different from dismissing it; striking out for non-compliance with procedural rules is not a determination on the merits
- An eviction order cannot issue from a judgment unless the judgment expressly directed eviction
- Under Order 37 Rule 7 of the Civil Procedure Rules, 2010, an adverse possession claimant must annex an extract of the defendant's title to the land
Court orders
#- 1.The Notice of Motion dated 10/03/2025 is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land known as LR. No. Bukira/Buhiringera/6X4 (statutory basis not expressly cited in the ruling)
Relief refused
#Eviction order evicting the plaintiffs/respondents from LR. No. Bukira/Buhiringera/6X4 and any subdivisions thereof
The striking out of the Originating Summons was not a determination on the merits and the ruling did not expressly direct eviction; the application was misconceived and an abuse of court process
OCS Kehancha Police Station to provide security during eviction
Follows from the refusal of the eviction order
Costs of the application
Court ordered no order as to costs
Costs
No order as to costs ("There with be no order as costs.")
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Striking out a matter or application is difierent from dismissing it.
The Originating Summons was lost for a legal technicality that did not entail analysis of the merits thereof.
unless the Court, in the judgment expressly directed that the plaintifis be evicted, the decision could not found an application for an eviction order.
The upshot of the foregoing is that the application lacks merit. I hereby order that it be dismissed. There with be no order as costs.
Issues in the judgment
#The judgment inconsistently describes costs of the earlier striking-out ruling, referring to costs 'to the Respondent' although the Respondents are the applicants' opponents (Plaintiffs/Respondents); likely a drafting error for costs to the Defendants/Applicants
Typographical/clerical errors and an unexplained reference to a different parcel (L.R Bukira/Buhiringera/1X2) in submissions versus the suit parcel 6X4
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ryoba & 4 others v Mwita & another (Enviromental and Land Originating Summons E027 of 2019) [2025] KEELC 5131 (KLR)", Case Analysis (2025). Notice of Motion dated 10/03/2025 (in Originating Summons dated 03/04/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5131/eng@2025-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.