[2016] KEELC 276 (KLR)
The court found that the 2nd plaintiff's claim for adverse possession had been dismissed and that he had failed to comply with the conditions for stay of execution as agreed by consent. As a result, he had no legal right to remain on the suit property. The court held that the defendant, having been declared the...
Source-derived case information.
- Citation
- [2016] KEELC 276 (KLR)
- Parties
- Applicant: Augustine Kipkoech Cheruiyot; Applicant: Paul Kipkemei Arap Tue; Respondent: Haron Ochanda Kabori
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 36 of 2010
- Procedural Posture
- Eviction Application / Ruling on Post Judgment Eviction Application
- Outcome
- Application for eviction allowed. Order of eviction issued against the 2nd plaintiff.
- Judges
- MA Silau
- Legal Topics
- Adverse Possession, Eviction Orders, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Augustine Kipkoech Cheruiyot
Applicant
Paul Kipkemei Arap Tue
Applicant
Haron Ochanda Kabori
Respondent
Procedural Posture
Eviction Application / Ruling on Post Judgment Eviction Application
Legal Issues
- 1 Whether the 2nd plaintiff is entitled to remain on the suit property after dismissal of the adverse possession claim.
- 2 Whether the conditions for stay of execution pending appeal were met by the 2nd plaintiff.
- 3 Whether an order of eviction should issue against the 2nd plaintiff.
Ratio Decidendi
The court found that the 2nd plaintiff's claim for adverse possession had been dismissed and that he had failed to comply with the conditions for stay of execution as agreed by consent. As a result, he had no legal right to remain on the suit property. The court held that the defendant, having been declared the lawful owner, was entitled to enforce the judgment through eviction. The application for eviction was therefore allowed, and an order for eviction was issued against the 2nd plaintiff. The court further directed that the eviction be executed by a court broker with police assistance, and that the costs of the application and eviction be borne by the 2nd plaintiff.
Court Disposition
Application for eviction allowed. Order of eviction issued against the 2nd plaintiff.
Orders
- Order of eviction of the 2nd plaintiff from land parcel Nakuru/Kapsita/1068.
- Applicant to appoint a court broker to execute the eviction order.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
HCC NO 36 of 2010
AUGUSTINE KIPKOECH CHERUIYOT......................1ST APPLICANT
PAUL KIPKEMEI ARAP TUE........................................2ND APPLICANT
VERSUS
HARON OCHANDA KABORI.........................................RESPONDENT
RULING
(Application for eviction; plaintiffs filing suit for adverse possession which they lost; defendant now seeking eviction of the 2nd plaintiff; application allowed; order for eviction to issue)
1. The application before me is that dated 10 September 2015 filed by the defendants. It seeks orders to have the 2nd plaintiff and his servants/agents evicted from the land parcel Nakuru/Kapsita/1068 (the suit land). The basis of the application is that vide a judgment delivered on 10 December 2014, it was declared that it is the defendant who is the lawful owner of the suit property. 2. The plaintiffs have however refused to vacate the said land hence the application for eviction.
3. The suit as filed by the two plaintiffs was one of adverse possession. The plaintiffs claimed to have acquired by adverse possession portions of 10 and 5 acres respectively of the suit property. The suit was opposed and proceeded for hearing. In a judgment delivered on 10 December 2014, the claim for adverse possession was dismissed. The plaintiffs signalled intention to appeal by filing a Notice of Appeal and an application for stay pending appeal. That application for stay pending appeal was compromised by consent on 9 June 2015. It was agreed that the 2nd plaintiff could be allowed stay subject to deposit of the sum of Kshs. 400,000/= as security within 60 days. In default, the judgment could be executed.
4. At the hearing of the application, only Mr. Ogeto for the applicant, appeared in court. He submitted that the 2nd plaintiff has not met the conditions for stay.
5. I have considered the application. Already, there is judgment to the effect that the plaintiffs have no entitlement to the suit property. The 2nd plaintiff was granted a stay subject to conditions which he has not fulfilled. Clearly, he has no right to be on the suit property and it is only appropriate that an order of eviction be issued.
6. I therefore allow this application. I issue an order of eviction of the 2nd plaintiff from the land parcel Nakuru/Kapsita/1068. The applicant is directed to appoint a court broker to execute the eviction order and the Officer Commanding the Elburgon Police Station is hereby ordered to provide security during the eviction exercise.
7. The costs of this application and of the eviction will be shouldered by the 2nd plaintiff.
8. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 22nd day of March , 2016.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT AT NAKURU
In presence of :-
No appearance on part of Counsels for applicant and respondent.
Court Assistant: Janet
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT AT NAKURU