[2018] KEELC 1719 (KLR)
The court found that as an appellate court, it lacks jurisdiction to grant eviction orders to enforce a lower court judgment. The application was therefore procedurally improper and constituted an abuse of the court process. The applicant should have pursued enforcement through the proper channels in the lower court...
Source-derived case information.
- Citation
- [2018] KEELC 1719 (KLR)
- Parties
- Applicant: Brookway Nyonje; Respondent: Japheth M. Chiteri
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 9 of 2017
- Procedural Posture
- Elc Appeal / Ruling on Application for Eviction Orders Post Appeal Dismissal
- Outcome
- application dismissed with costs
- Judges
- NA Matheka
- Legal Topics
- Eviction Orders, Enforcement of Judgments, Jurisdiction of Appellate Court
- 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
Brookway Nyonje
Applicant
Japheth M. Chiteri
Respondent
Procedural Posture
Elc Appeal / Ruling on Application for Eviction Orders Post Appeal Dismissal
Legal Issues
- 1 Whether the appellate court has jurisdiction to grant eviction orders enforcing a lower court judgment.
- 2 Whether the procedure adopted by the applicant to seek eviction is proper.
- 3 Whether the application constitutes an abuse of court process.
Ratio Decidendi
The court found that as an appellate court, it lacks jurisdiction to grant eviction orders to enforce a lower court judgment. The application was therefore procedurally improper and constituted an abuse of the court process. The applicant should have pursued enforcement through the proper channels in the lower court or by filing a substantive suit. Consequently, the application was dismissed as unmerited.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAKAMEGA
ELC APPEAL CASE NO. 9 OF 2017
BROOKWAY NYONJE..........................................PLAINTIFF/APPLICANT
VERSUS
JAPHETH M. CHITERI.................................DEFENDANT/RESPONDENT
RULING
The application is dated 12th July 2018 and seeks the following orders;
1. That the respondent be and is hereby evicted from land parcel No. MARAMA/SHINAMWENYULI/2094.
2. That the O.C.S. Butere Police Station to provide security during the eviction process.
3. That costs of this application be provided for.
It is supported by the annexed affidavit of BROOKWAY NYONJE, and other evidence and following grounds:-That the applicant is the sole registered own of land parcel No. MARAMA/SHINAMWENYULI/2094. That on 26th November, 2010 the applicant obtained a decree order from Butere Law Court CC No. 184 of 2001 which the respondent has failed, ignored and/or neglected to obey to date despite being served.That the respondent appealed against the verdict of Butere Law Court and the same appeal was dismissed by this court on 14th May, 2018 for want of prosecution.That the applicant continues to incur exorbitant costs and suffer substantial loss due to respondent’s continued stay on the suit land.That it is in the interest of justice that the orders sought be granted as no prejudice shall be caused to the respondent
This court being an appellate court has no jurisdiction to grant the orders sought.The application is misconceived and cannot be granted by the court.The applicant has to file substantive suit.The respondent has adopted a procedure unknown in court.
This court has considered the application and the submissions herein. The application seeks orders to enforce a judgement of the lower court. This application is misplaced and an abuse of the court process. The application is misconceived and cannot be granted by the court. This application is unmerited and I dismiss it with costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 25TH DAY OF SEPTEMBER 2018.
N.A. MATHEKA
JUDGE