[2017] KEELC 3077 (KLR)
The court held that an order for eviction, which is final in nature, cannot be issued through an interlocutory application. Such relief can only be granted after the suit is fully heard and determined. The court also noted that interlocutory judgment had already been entered against the Defendant, and the...
Source-derived case information.
- Citation
- [2017] KEELC 3077 (KLR)
- Parties
- Plaintiff: Anne Wanjiku Gathoni alias Anne Wanjiku Lidonde; Respondent: Monica Mwikali Mwanzia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 500 of 2014
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- MM Gitumbi
- Legal Topics
- Interlocutory Injunctions, Eviction Orders, Contempt of Court, Trespass, Formal Proof Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anne Wanjiku Gathoni alias Anne Wanjiku Lidonde
Plaintiff
Monica Mwikali Mwanzia
Respondent
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the Defendant should be committed to civil jail for disobedience of court orders.
- 2 Whether the court should issue an order directing the Defendant to vacate the suit property at the interlocutory stage.
- 3 Whether an eviction order can be granted through an interlocutory application.
Ratio Decidendi
The court held that an order for eviction, which is final in nature, cannot be issued through an interlocutory application. Such relief can only be granted after the suit is fully heard and determined. The court also noted that interlocutory judgment had already been entered against the Defendant, and the appropriate course of action for the Plaintiff is to fix the matter for formal proof to obtain a final determination. Consequently, the Plaintiff's application seeking committal of the Defendant to civil jail and an eviction order was dismissed, with costs in the cause.
Court Disposition
application dismissed
Orders
- The Plaintiff's application dated 25/6/2014 is dismissed.
- Costs in the cause.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
MILIMANI LAW COURTS
ELC. CASE NO. 500 OF 2014
ANNE WANJIKU GATHONI alias
ANNE WANJIKU LIDONDE……………...……..…………..PLAINTIFF
VERSUS
MONICA MWIKALI MWANZIA……………………….. RESPONDENT
RULING
I have considered Notice of Motion dated 25/6/2014 which seeks an order committing the Defendant into civil jail for disobedience of this court’s orders issued on 25/4/14. The Plaintiff also seeks the court to issue an order directing the Defendant to vacate the suit property.
I do observe that it is indeed the correct position that this court did issue an order on 25/4/2014 allowing prayer No. 2 of the Plaintiff’s Notice of Motion dated 24/4/2014 which is todate yet to be heard and determined. The gist of that order was as follows:
The Defendant and her husband/Representative Mr. Mwanzia Musyoka whether by themselves or acting through servants,employees, watchmen and/or agents be restrained from further trespassing, remaining and/or in any way interfering with the Plaintiff/Applicant’s Land Title Ngong/Ngong/21441 pending interpartes hearing and determination of this application or further orders of the Honourable court.
Those orders remain in force as Notice of Motion dated 24/4/2014 is yet to be heard and determined.
The position facing the court at this point is the apparent continued occupation of the suit property by the Defendant which the Plaintiff seeks to address by seeking an order of eviction as per the terms of prayer No. 3 of this Application. Such an order cannot be issued through an interlocutory application due to its final nature. Such an order can only be issued after this suit is fully heard and determined.
It is my further observation that interlocutory judgment has indeed been entered into this matter against the Defendant on 23/9/2015. It would appear to me that the best course of action would be for the Plaintiff to fix this matter for formal proof so that she may get a final determination of this suit.
In the meantime and for the reasons enunciated above, this application is dismissed. Costs in the cause.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 31STDAY OF MARCH 2017.
MARY M. GITUMBI
JUDGE