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ELCAllowedVihiga Environment and Land Court Appeal from Vihiga SPMC EL Case No. 31 of 2019 (Memorandum of Appeal dated 3rd January 2025)

Kavuli v Kavuli (Environment and Land Appeal E001 of 2025) [2026] KEELC 65 (KLR)

Environment and Land Court
20 January 2026
1,462 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Vihiga court cancelled an eviction order because the landowner skipped the mandatory Land Act procedure and never actually pleaded a trespass claim.

What this practically means

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Executive summary

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The appellant, Herman Lugongo Kavuli, had sued in Vihiga SPMC EL Case No. 31 of 2019 seeking a declaration that the respondent holds land parcel No. N/Maragoli/Chamakanga/537 in trust for him and an order for sub-division. That suit was struck out on 5th December 2019 as time barred under section 7 of the Limitation of Actions Act. The respondent then filed a Chamber Summons dated 7th December 2023 seeking the appellant's eviction and removal of his structures. By a ruling dated 4th December 2024 the trial court allowed that application, reasoning that a claim to recover land must be brought within twelve years. On appeal, the Environment and Land Court, E. Asati J, revisited the matter as a first appeal, re-examining the evidence to reach independent findings. The court held that no substantive trial ever took place because the suit had been struck out; the respondent never filed a counterclaim, so trespass and eviction were never pleaded or heard. Further, there was no evidence of compliance with section 152E of the Land Act, the statutory procedure for removal of unlawful occupants of private land, and the application was therefore improperly brought within the suit. The annexures to the replying affidavit also disclosed a succession cause in which the appellant was named a beneficiary of the estate alongside the respondent. The court confined the appeal to the ruling of 4th December 2024, declining to revisit the striking-out ruling. The appeal was allowed: the ruling of 4th December 2024 was set aside and substituted with an order dismissing the Chamber Summons, with each party bearing their own costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether or not the trial court erred in allowing the Chamber Summons application dated 7th December 2023
  2. 2.Whether or not the appeal herein is in respect of the ruling dated 5th December 2019 striking out the suit
  3. 3.Whether or not the appeal has merit
  4. 4.Costs of the appeal

Key legal issues

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01

Whether the trial court erred in allowing the Chamber Summons dated 7th December 2023 seeking eviction

Holding

Yes. No substantive trial took place; the suit had been struck out, the respondent never counterclaimed, trespass and eviction were never pleaded or heard, and the statutory procedure under section 152E of the Land Act was not followed. The application was improperly brought in the suit.

Reasoning

The court noted that the underlying suit was struck out on 5th December 2019 as time barred, so no trial occurred. The respondent had no claim in the suit and never filed a counterclaim; trespass and eviction were never part of the suit. The Land Act procedure for removal of unlawful occupants was not complied with. The replying affidavit annexures also disclosed a succession cause naming the appellant a beneficiary, undermining the eviction. Accordingly the trial court erred in allowing the application.

p. 4
02

Whether the appeal extends to the ruling of 5th December 2019 striking out the suit

Holding

No. The Memorandum of Appeal is expressly against the ruling of 4th December 2024 only.

Reasoning

The court held that since the Memorandum of Appeal was clear that the appeal challenged only the ruling dated 4th December 2024, it could not entertain whether the suit was filed out of time or whether striking it out was erroneous. That limitation confined the appellate review to the eviction ruling.

p. 4

Legal principles established

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  • On a first appeal the court is enjoined to re-examine the evidence before the trial court so as to arrive at independent conclusions and findings.
  • The procedure for removal of an unlawful occupant of private land is provided for in section 152E of the Land Act, and eviction orders cannot issue where that procedure was not complied with.
  • An eviction application improperly brought in a suit in which no counterclaim or trespass claim was pleaded cannot be allowed.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling dated 4th December 2024 set aside
  3. 3.Substituted with an order dismissing the Chamber Summons dated 7th December 2023
  4. 4.Each party to bear own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Vihiga Senior Principal Magistrate's Court
Vihiga SPMC EL Case No. 31 of 2019
Jurisdiction invoked
First appellate jurisdiction under section 78 of the Civil Procedure Act (appeal from the ruling dated 4th December 2024 in Vihiga SPMC EL Case No. 31 of 2019)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The court finds that the appeal has merit and hereby allows it by setting aside the ruling dated 4th December 2024, and substituting it with an order dismissing the Chamber Summons dated 7th December 2023. Each party to bear own costs of the appeal.
p. 4Final orders/disposition
The procedure for removal of an unlawful occupant of private land is provided for, inter alia, in section 152E of the Land Act No. 6 of 2012. I find no evidence that the procedure was complied with. I find that the application was improperly brought in the suit.
p. 4Statutory eviction procedure
This being a first appeal, this court is enjoined to reexamine the evidence placed before the trial court so as to arrive at independent conclusion and findings.
p. 3Duty of first appellate court
It is clear from the entire proceedings of the case that no substantive trial took place. The suit was struck out for having been filed out of time.
p. 4Status of underlying suit

Issues in the judgment

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minor

The respondent's name is not stated anywhere in the judgment; the respondent is referred to only as 'the respondent' and the appellant is named in the eviction orders.

minor

The judgment inconsistently describes the 5th December 2019 ruling: paragraph 3 says the suit was struck out, while the respondent's supporting affidavit says it was dismissed with costs.

minor

The case title/case number of the appeal itself is not printed in the judgment; only the lower court case number and the Memorandum of Appeal date appear.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kavuli v Kavuli (Environment and Land Appeal E001 of 2025) [2026] KEELC 65 (KLR)", Case Analysis (2026). Vihiga Environment and Land Court Appeal from Vihiga SPMC EL Case No. 31 of 2019 (Memorandum of Appeal dated 3rd January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/65/eng@2026-01-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.