[2018] KEELC 1059 (KLR)
The court found that the respondent's claim to the suit land had already been dismissed in a previous judgment, and therefore the respondent had no right to remain on the property. The continued occupation by the respondent was unlawful, and the applicant was entitled to seek eviction. The absence of any opposition...
Source-derived case information.
- Citation
- [2018] KEELC 1059 (KLR)
- Parties
- Applicant: Augustin Kipkoech Cheruiyot; Applicant: Paul Kipkemoi Arap Tue; Respondent: Haron Ochanda Kaburi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 464 of 2017
- Procedural Posture
- Eviction Application / Ruling on Application for Eviction Post Judgment
- Outcome
- Application allowed. Eviction orders granted against the 1st plaintiff.
- Legal Topics
- Adverse Possession, Eviction Orders, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Augustin Kipkoech Cheruiyot
Applicant
Paul Kipkemoi Arap Tue
Applicant
Haron Ochanda Kaburi
Respondent
Procedural Posture
Eviction Application / Ruling on Application for Eviction Post Judgment
Legal Issues
- 1 Whether the respondent is entitled to remain on the suit land after dismissal of his adverse possession claim.
- 2 Whether the applicant is entitled to eviction orders against the respondent.
Ratio Decidendi
The court found that the respondent's claim to the suit land had already been dismissed in a previous judgment, and therefore the respondent had no right to remain on the property. The continued occupation by the respondent was unlawful, and the applicant was entitled to seek eviction. The absence of any opposition from the respondent further justified the grant of the eviction orders. The court held that the applicant should appoint a court broker or auctioneer to execute the eviction, with security provided by the OCS, Elburgon Police Station. The respondent was ordered to bear the costs of the application and the eviction process.
Court Disposition
Application allowed. Eviction orders granted against the 1st plaintiff.
Orders
- Eviction orders issued against Augustine Kipkoech Cheruiyot (1st plaintiff) from 10 acres of Nakuru/Kapsita/1068.
- Applicant to appoint a court broker/auctioneer to execute the warrants of eviction.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO.464 OF 2017
AUGUSTIN KIPKOECH CHERUIYOT....1ST APPLICANT
PAUL KIPKEMOI ARAP TUE ................2ND APPLICANT
VERSUS
HARON OCHANDA KABURI ......................RESPONDENT
RULING
(Application for eviction; respondent having made a claim for adverse possession over the suit land which was dismissed; respondent’s continued possession of the suit land therefore not tenable; orders of eviction issued).
1. The application before me is that dated 14 May 2018 filed by the defendant vide which he has sought orders of eviction to be issued against the 1st plaintiff over 10 acres that he is claimed to occupy in the land parcel Nakuru/Kapsita/1068. The applicant has also sought that the order of eviction be enforced by the OCS, Elburgon Police Station.
2. The case itself was commenced by way of an Originating Summons through which the plaintiffs claimed to be entitled to the land parcel Nakuru/Kapsita/1068 by way of adverse possession. The 1st plaintiff (the respondent in this application) claimed to be entitled to 10 acres of this land, whereas the 2nd plaintiff claimed to be entitled to 5 acres of the land. Their suit was heard and dismissed on 10 December 2014.
3. In this motion, the applicant has averred that despite the judgment, the respondent has refused to vacate the suit land thus making this application necessary.
4. The respondent did not file anything to oppose the motion. On my part, I see no reason why I should not allow it. The respondent’s case over the suit property failed and the respondent has no right to be on the suit land. It has already been held in a full judgment that the respondent has no claim over the suit land. The prayer by the applicant for an order of eviction is therefore justified.
5. I allow this application and issue eviction orders against the 1st plaintiff, Augustine Kipkoech Cheruiyot. I direct the applicant to appoint a court broker/auctioneer to execute the warrants of eviction. I further order the OCS, Elburgon, to provide security to the court broker/auctioneer, during the eviction exercise. The respondent will bear the costs of this application and any costs of eviction.
6. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 3rd day of October 2018.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU
In presence of: -
Mr. Ogeto for the applicant.
No Appearance for the respondent.
Court Assistant: Nelima Janepher.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU