[2014] KEELC 190 (KLR)
The court held that, although judgment had been entered in favour of the plaintiff requiring the defendant to vacate the suit land within 30 days of service, there was no evidence before the court that the judgment or decree had actually been served on the defendant. In the absence of an affidavit of service or...
Source-derived case information.
- Citation
- [2014] KEELC 190 (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
- Eviction Application / Ruling on Post Judgment Eviction Application
- Outcome
- application dismissed
- Legal Topics
- Eviction Proceedings, Service of Judgment, Trespass, Possession Orders
- 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
Eviction Application / Ruling on Post Judgment Eviction Application
Legal Issues
- 1 Whether the plaintiff is entitled to an eviction order against the defendant in the absence of proof of service of judgment or decree.
- 2 Whether the court can issue an eviction order before confirming service of the judgment on the defendant.
Ratio Decidendi
The court held that, although judgment had been entered in favour of the plaintiff requiring the defendant to vacate the suit land within 30 days of service, there was no evidence before the court that the judgment or decree had actually been served on the defendant. In the absence of an affidavit of service or other proof of service, the court could not assume that the defendant was aware of the judgment or the requirement to vacate. The court emphasized that service of the judgment or decree is a prerequisite to seeking enforcement by way of eviction. Accordingly, the application for eviction was dismissed, with the direction that the plaintiff must first serve the judgment or decree...
Court Disposition
application dismissed
Orders
- The application for eviction is dismissed.
- The plaintiff is directed to serve the judgment/decree on the defendant.
Full Case Text
Judgment text and source record
20 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; previous order that judgment first be served before applying for eviction; no proof of service of judgment; application dismissed)
RULING
The application before me is that dated 18 September 2014. It seeks an order of eviction against the defendant.
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 and the supporting affidavit. Although it is stated in the application that the judgment/decree was served, I have no evidence through an affidavit of service that shows that the judgment and/or decree has been served. It may very well be that the defendant is not aware that there is a decree that has ordered him to vacate the suit land. In absence of proof that the judgment and/or decree has been served upon the defendant, I am unable to issue the order of eviction.
I direct that the judgment/decree be served and it is after 30 days that this court may issue an order of eviction.
I have no option but to dismiss this application but make no orders as to costs.
DATED AND DELIVERED AT ELDORET THIS 2ND DAY OF OCTOBER 2014
JUSTICE MUNYAO SILA
ENVIRONMENT AND LAND COURT AT ELDORET
Delivered in the presence of:
Delivered in the presence of:
Mrs. L.C. Kamau present holding brief for M/s A.K. Chepkonga for plaintiff/applicant.