[2008] KEHC 1168 (KLR)
The court held that, despite the applicant's concerns about potential resistance and the need for security during the eviction, Kenyan law and binding appellate authority prohibit the use of police to effect or aid private evictions in civil matters. The court cited Kamau Mucua v The Ripples Ltd, where it was...
Source-derived case information.
- Citation
- [2008] KEHC 1168 (KLR)
- Parties
- Applicant: Angela Wairimu Githi; Respondent: Charles Wahome Gethi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 579 of 2003
- Procedural Posture
- Civil Case / Ruling on Application for Police Assistance in Eviction
- Outcome
- application dismissed
- Judges
- JL Osiemo
- Legal Topics
- Eviction Orders, Police Assistance in Execution, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Angela Wairimu Githi
Applicant
Charles Wahome Gethi
Respondent
Procedural Posture
Civil Case / Ruling on Application for Police Assistance in Eviction
Legal Issues
- 1 Whether the court can lawfully order police assistance to aid in the execution of a civil eviction order.
- 2 Whether the involvement of police in private evictions is permissible under Kenyan law.
Ratio Decidendi
The court held that, despite the applicant's concerns about potential resistance and the need for security during the eviction, Kenyan law and binding appellate authority prohibit the use of police to effect or aid private evictions in civil matters. The court cited Kamau Mucua v The Ripples Ltd, where it was expressly stated that police involvement in such civil executions is unlawful, and emphasized that the Civil Procedure Rules provide specific mechanisms for enforcement without recourse to police assistance. Accordingly, the application for police involvement was dismissed as contrary to established legal principles.
Court Disposition
application dismissed
Orders
- The application for police assistance in the eviction is dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 579 of 2003
ANGELA WAIRIMU GITHI……......………………..PLAINTIFF/APPLICANT
VERSUS
CHARLES WAHOME GETHI……………….DEFENDANT/RESPONDENT
R U L I N G
This is an application brought under Section 3A of the Civil Procedure Act seeking orders that an order do issue directed to the Officer Commanding Ndaragua Police Station (OCS) to provide security to M/s Providence Security Auctioneers and Brokers, their servants or agents when evicting the Defendant/Judgment-debtor herein Charles Wahome Gethii, his servants and agents from the suit land being LR No 7381 within Ndaragua Area.
In support of the application Angela Wairimu Gethi has sworn an affidavit in which she avers that to effectively execute the eviction order issued by this court it is necessary that the Court Broker, his servants or agents be fully protected by the police as the Defendant may resist and organize mobs to create fights fracas, and other commotions thereby obstructing the execution of the court order; that this is a very risky exercise as the Defendant is likely to become hostile, refuse to comply.
I agree that the sentiments of the Applicant could be justified as is indicated from the pleadings and the affidavit evidence that the Defendant had been in possession of the 6 acres out of the 300 acres for the last 33 years but as the Court of Appeal has held in several authorities it is unlawful to utilize the police in civil actions for the purpose of effecting or aiding private evictions or reinstatements. One such example is the case of KAMAU MUCUA vs THE RIPPLES LTD CA No. 186 of 1992 where Hancox JA as he then was had this to say:-
“Paragraph 4 of the formal order extracted on 22nd September 1992 says that police assistance may be enlisted to ensure that the Plaintiff i.e the Respondent is reinstated to the premises. It would be unlawful to utilize the police in a civil action for the purposes of effecting or aiding private eviction.”
And Kwach JA as he then was in the same appeal said:-
“The only valid criticism of the order of the judge which I can see as of now but which does not swing the scale one way or the other in this application is the direction that the assistance of the police should be enlisted to secure compliance by the Applicant. The police should never be involved in such matters as there is specific provision for enforcement under Order 21 rule 28 of the Civil Procedure Rules.”
For these reasons I would decline to grant the order sought, and dismiss the application.
Dated and delivered at Nairobi this 2nd day of July 2008.
J. L. A. OSIEMO
JUDGE