[2015] KEELC 326 (KLR)
The plaintiffs' claim to the suit land by adverse possession was conclusively dismissed by the Court of Appeal, reversing the earlier High Court decision. As a result, the plaintiffs have no legal basis to remain on the property. Their continued occupation constitutes trespass. The defendant, as the lawful...
Source-derived case information.
- Citation
- [2015] KEELC 326 (KLR)
- Parties
- Plaintiff: Chepkong Magobe; Plaintiff: Amos K Chomboi; Plaintiff: Michael Konga; Defendant: Chemjor Chepkuto (Suing as the representative of the estate of Chepkuto Arap Birir)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 644 of 1991
- Procedural Posture
- Eviction Application / Ruling on Application for Eviction Post Appeal
- Outcome
- Application for eviction allowed; orders granted as prayed.
- Judges
- MA Silau
- Legal Topics
- Adverse Possession, Eviction Orders, Trespass, Execution of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chepkong Magobe
Plaintiff
Amos K Chomboi
Plaintiff
Michael Konga
Plaintiff
Chemjor Chepkuto (Suing as the representative of the estate of Chepkuto Arap Birir)
Defendant
Procedural Posture
Eviction Application / Ruling on Application for Eviction Post Appeal
Legal Issues
- 1 Whether the plaintiffs are entitled to remain on the suit land after their claim for adverse possession was dismissed by the Court of Appeal.
- 2 Whether the defendant is entitled to an order of eviction against the plaintiffs from land parcel Pokor/Kures/83.
Ratio Decidendi
The plaintiffs' claim to the suit land by adverse possession was conclusively dismissed by the Court of Appeal, reversing the earlier High Court decision. As a result, the plaintiffs have no legal basis to remain on the property. Their continued occupation constitutes trespass. The defendant, as the lawful representative of the estate entitled to the land, is entitled to enforce the appellate judgment through eviction. The lack of opposition to the application further supports the grant of the orders sought. The court therefore allows the application for eviction, authorizes the appointment of a bailiff or auctioneer to execute the order, and directs police assistance for enforcement....
Court Disposition
Application for eviction allowed; orders granted as prayed.
Orders
- The plaintiffs/respondents be evicted from the land parcel Pokor/Kures/83.
- The defendant/applicant is authorized to appoint a court bailiff/auctioneer to execute the order of eviction.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC 644 OF 1991
CHEPKONG MAGOBE ………....………….……1ST PLAITNIFF
AMOS K CHOMBOI ………..………………….2ND PLAINTIFF
MICHAEL KONGA……..….…….……………..3RD PLAINTIFF
VERSUS
CHEMJOR CHEPKUTO (Suing as the representative of
the estate ofCHEPKUTO ARAP BIRIR)…….……..DEFENDANT
RULING
(Application for eviction; application not opposed; application allowed).
1. The application before me is that dated 22 April 2015 filed by the defendant. The application is said to be brought inter alia under the provisions of Order 22 rules 20 and29 (1), of the Civil Procedure Rules. In essence what the applicant wants is an order to have the plaintiffs evicted from the land parcel Pokor/Kures/83 (the suit land).
2. The background to this application is that on 18 January 1991, the plaintiffs instituted this suit by way of Originating Summons, claiming that they are entitled to the suit land by way of adverse possession. The matter was heard, and vide a judgment delivered on 16 June 2006, the plaintiffs' case was allowed. The applicant herein filed an appeal, being Nakuru Court of Appeal, Civil Appeal No. 44 of 2007. That appeal was heard and the Court of Appeal reversed the decision of the High Court. The Court of Appeal was of the view that the plaintiffs had not established a good case to warrant a decree in their favour for adverse possession.
3. In this application, the applicant has averred that notwithstanding the judgment of the Court of Appeal, the plaintiffs are still trespassing into the suit property. It is claimed that they have destroyed the fence and are continuing to graze their animals.
4. Despite being served, the plaintiffs/respondents have filed no reply to this application. The application is therefore not opposed.
5. The plaintiffs failed in their quest to claim the land and I do not see why they are still on it. The applicant is entitled to an order of eviction.
6. I therefore allow the application and make the following orders :-
(i) That the plaintiffs/respondents be evicted from the land parcel Pokor/Kures/83.
(ii) That the defendant/applicant do appoint a court bailiff/auctioneer to execute the order of eviction.
(iii) That the OCS Mogotio Police Station do provide security as the order of eviction is being executed.
7. The applicant shall also have the costs of this application and any costs relating to the eviction shall be shouldered by the plaintiffs.
It is so ordered.
Dated, signed and delivered in open court at Nakuru this 17TH day of June 2015.
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
AT NAKURU
In presence of :
Defendant/applicant acting in person
CA: Janet