[2014] KEELC 121 (KLR)
The court found that the plaintiff is the absolute proprietor of the suit land and had obtained judgment for eviction of the defendant, who was properly served with the decree but failed to vacate within the stipulated period. The court held that, in the absence of compliance by the defendant, the only recourse is...
Source-derived case information.
- Citation
- [2014] KEELC 121 (KLR)
- Parties
- Plaintiff: Abigael Barmao; Defendant: Mwangi Theuri
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 393 of 2013
- Procedural Posture
- Land and Property Suit / Post Judgment Eviction Application
- Outcome
- Application allowed; eviction order granted.
- Legal Topics
- Eviction Orders, Trespass to Land, Proprietorship Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abigael Barmao
Plaintiff
Mwangi Theuri
Defendant
Procedural Posture
Land and Property Suit / Post Judgment Eviction Application
Legal Issues
- 1 Whether the defendant should be evicted from land parcel Uasin Gishu/Kahungura Scheme/237 following judgment for the plaintiff.
- 2 Whether the defendant was properly served with the decree and failed to comply with the court's order to vacate.
Ratio Decidendi
The court found that the plaintiff is the absolute proprietor of the suit land and had obtained judgment for eviction of the defendant, who was properly served with the decree but failed to vacate within the stipulated period. The court held that, in the absence of compliance by the defendant, the only recourse is to grant the order of eviction as sought by the plaintiff, to ensure enforcement of the court's judgment and protection of the plaintiff's proprietary rights.
Court Disposition
Application allowed; eviction order granted.
Orders
- The defendant shall be evicted from land parcel Uasin Gishu/Kahungura Scheme/237.
- The plaintiff is directed to appoint a court bailiff to execute the order of eviction.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E&L NO. 393 OF 2013
ABIGAEL BARMAO..............................................................................PLAINTIFF
VS
MWANGI THEURI.............................................................................DEFENDANT
(Application for eviction; judgement having been entered for the plaintiff against the defendant; defendant ordered to vacate suit land but not doing so; application allowed; order of eviction issued)
RULING
The application before me is that dated 15 October 2014. It seeks orders to have the defendant evicted from the land parcel Uasin Gishu/Kahungura Scheme/237.
In this suit, the plaintiff contended that she is the absolute proprietor of the land parcel Uasin Gishu/Kahungura Scheme/237. It was her case that the defendant has trespassed on the suit land. In her pleadings the plaintiff inter alia sought orders to have the defendant evicted from the suit land. The defendant never filed appearance nor defence and the matter proceed as an undefended cause. I heard the evidence of the plaintiff and on 23 April 2014 I entered judgment for the plaintiff. I inter alia ordered the defendant to vacate the suit land within a period of 30 days of service of the judgment and/or decree.
In this application, it is contended that the defendant has failed to move out of the suit land. That is the reason that the plaintiff wants the order of eviction.
I have gone through the application. There is an annexed affidavit of service by one Vincent O. Ogutu where he has deponed that he served the decree on 9 May 2013. It is therefore apparent that despite being served with the decree and 30 days from service having lapsed, the defendant has failed to move out of the suit land.
I have no other option but to order that he be evicted from the suit land. I therefore allow this application. I direct the plaintiff to appoint a court bailiff to execute the order of eviction. I also direct the OCS Kaptagat Police Station to assist the court bailiff and provide security to the court bailiff while executing the order of eviction. The defendant shall shoulder the costs of this application and any costs incurred in the eviction.
It is so ordered.
DATED AND DELIVERED AT ELDORET THIS 29TH DAY OF OCTOBER 2014
JUSTICE MUNYAO SILA
ENVIRONMENT AND LAND COURT AT ELDORET
Delivered in the presence of:
Delivered in the presence of:
Ms Adhiambo holding brief for M/s A.K. Chepkonga for the plaintiff.
N/A for defendant.