[2016] KEHC 4508 (KLR)
The court held that the plaintiff's application to set aside the eviction order was brought after an inordinate delay of 24 years, which is prejudicial to the defendant and contrary to the principle that litigation must come to an end. The only issue raised by the plaintiff was lack of notice of eviction, which was...
Source-derived case information.
- Citation
- [2016] KEHC 4508 (KLR)
- Parties
- Plaintiff: Albert Obiayo Mwasi; Defendant: Okoro Asikoye
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 189 of 1988
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Eviction Order
- Outcome
- application dismissed
- Legal Topics
- Eviction Orders, Setting Aside Orders, Finality of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Albert Obiayo Mwasi
Plaintiff
Okoro Asikoye
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Eviction Order
Legal Issues
- 1 Whether the plaintiff is entitled to have the eviction order set aside after a lapse of 24 years.
- 2 Whether lack of notice of eviction is a sufficient ground to set aside a finalised court order.
Ratio Decidendi
The court held that the plaintiff's application to set aside the eviction order was brought after an inordinate delay of 24 years, which is prejudicial to the defendant and contrary to the principle that litigation must come to an end. The only issue raised by the plaintiff was lack of notice of eviction, which was not sufficient to justify setting aside a finalised order, especially when the plaintiff was aware of the order and failed to act within a reasonable time. The court found no merit in the application and dismissed it, emphasizing the need for finality in litigation and the importance of respecting court orders.
Court Disposition
application dismissed
Orders
- The application dated 16th June 2016 is dismissed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISUMU
CIVIL CASE NO. 189 OF 1988
BETWEEN
ALBERT OBIAYO MWASI ............................................................PLAINTIFF
AND
OKORO ASIKOYE ...................................................................... DEFENDANT
R U L I N G
The application before the court is to set aside an eviction order. It is dated 4th June 2016. The applicant seeks to set aside an order issued by Khamoni J.,on 12th October 1992 wherein he ordered that ALBERT OBIAYO MWASI vacate the land parcel known as WESTBUNYORE/ITUMBU/194within 3 months from that date.
According to the proceedings the dispute was arbitrated by the area District Officer, the elders and the decision adopted by the court. The plaintiff applied to set aside the award but the same was dismissed by the court on 5th February 1991. The parties have appeared in court today and they are very old men. They pleaded their respective cases. The plaintiff prayed for a chance to be heard the application to set aside the eviction order while the defendant stated that litigation was finalised and that the plaintiff has not vacated the land as ordered.
Looking at the matter, I must say that this is a case where litigation must come to an end. For 24 years to elapse before seeking a stay is an inordinately long time and indeed prejudicial to the other party. Whatever the reasons, the plaintiff knew there was an order against him and that he was expected to vacate the land. He cannot wake up after 24 years to seek a stay pending the setting aside of order of eviction.
As regards the aspect of setting aside, the only issue that the applicant has raised is one of eviction. He claims that he was not given notice of eviction. He does not dispute the matter is finalised. He must now be told in no certain terms that he must leave the land.
I therefore dismiss the application dated 16th June 2016.
DATED, SIGNED and DELIVERED at KISUMU this 29th June 2016.
D. S. MAJANJA
J U D G E