Zabelio Kaburu (for Defendant/Applicant) v Plaintiffs/Respondents
The bottom line
#A Kenyan court cannot evict anyone through a simple application — eviction must be formally pleaded in a proper lawsuit first.
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 court is seized of jurisdiction to grant the orders of eviction which were never sought vide the primary pleadings or otherwise
- 2.Whether orders of eviction (if at all) can issue on the basis of an application, in the manner sought
Key legal issues
#Jurisdiction to grant eviction never pleaded
The eviction prayer was mounted in vacuum; the court cannot grant a relief not sought in the pleadings or any counterclaim.
In an adversarial system parties and the court are bound by pleadings. The Applicant, having filed no counterclaim or separate suit seeking eviction after the respondents' originating summons was dismissed, cannot use a post-judgment application to procure eviction. Section 3A inherent jurisdiction cannot override adequate statutory provisions or supply an unpleaded relief.
Whether eviction can issue on an application
Eviction is a substantive relief grantable only upon determination of a substantive suit where it is pleaded.
The court noted a growing trend of litigants seeking eviction orders through miscellaneous or post-judgment applications, condemned it as unorthodox and unknown to law, contrary to the doctrine of departure and Order 2 Rule 6 of the Civil Procedure Rules, and warned it could degenerate into anarchy. The correct course under sections 19 of the Act and Order 3 Rule 2 must be followed.
Legal principles established
#- A substantive order of eviction cannot be sought and obtained on the basis of an application or post-judgment application where eviction was not pleaded in the primary suit.
- The inherent jurisdiction of the court cannot be invoked to grant a relief not sought in the substantive pleadings.
- Parties are bound by their pleadings; the court can only grant reliefs captured at the foot of the pleadings.
Court orders
#- 1.The Application dated the 12.05.2026 be and is hereby Dismissed
- 2.Costs of the Application be and are hereby awarded to the Respondents
- 3.The costs in terms of clause (ii) shall be agreed upon and in default be taxed in the usual manner
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 3 and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya
Relief refused
#Order for eviction of the Plaintiffs/Respondents from suit land L.R. No. Abothuguchi/Gitie/437
No pleading or counterclaim anchored eviction; a substantive eviction order cannot be procured by a post-judgment application
Security from OCS Mujwa Police Station during eviction
Falls with the main eviction prayer, which was dismissed
Costs
Costs of the Application awarded to the Respondents, to be agreed upon and in default taxed in the usual manner
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.
The Application dated the 12.05.2026 be and is hereby Dismissed.
Costs of the Application be and are hereby awarded to the Respondents.
a substantive order of eviction cannot be sought and obtained on the basis of an application. Furthermore, such an order cannot issue on the basis of a post judgment application, particularly, where no such order had been sought in the primary pleadings.
the inherent jurisdiction of the court cannot be invoked to grant a relief which had not been sought vide the substantive pleadings.
Issues in the judgment
#The judgment lacks a proper case title/case number heading; paragraphs 1-2 are blank and the matter is identified only by the application date
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zabelio Kaburu (for Defendant/Applicant) v Plaintiffs/Respondents", Case Analysis (2026). Notice of Motion Application dated 12.05.2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3821/eng@2026-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.