[2014] KEELC 558 (KLR)
The court found that its prior judgment and decree clearly established the defendant as the registered proprietor of the suit property and entitled her to quiet possession. The plaintiffs were required to vacate the property to allow the defendant to take possession. Their continued occupation was in defiance of the...
Source-derived case information.
- Citation
- [2014] KEELC 558 (KLR)
- Parties
- Plaintiff: Daniel Kimani Mbugua; Plaintiff: Leonard Kamau Mbugua; Plaintiff: Joseph Chege Waceke; Plaintiff: John Chege Mbugua; Defendant: Hannah Mwihaki Kamau
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 115 of 2007
- Procedural Posture
- Notice of Motion / Ruling on Post Judgment Eviction Application
- Outcome
- Application allowed; eviction order granted; costs awarded to applicant.
- Legal Topics
- Eviction Orders, Registered Proprietorship, Quiet Possession, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kimani Mbugua
Plaintiff
Leonard Kamau Mbugua
Plaintiff
Joseph Chege Waceke
Plaintiff
John Chege Mbugua
Plaintiff
Hannah Mwihaki Kamau
Defendant
Procedural Posture
Notice of Motion / Ruling on Post Judgment Eviction Application
Legal Issues
- 1 Whether the defendant, as registered proprietor, is entitled to eviction orders against the plaintiffs who have refused to vacate the suit property despite a court decree.
- 2 Whether the court's prior judgment and decree are capable of being executed by way of eviction.
Ratio Decidendi
The court found that its prior judgment and decree clearly established the defendant as the registered proprietor of the suit property and entitled her to quiet possession. The plaintiffs were required to vacate the property to allow the defendant to take possession. Their continued occupation was in defiance of the court's orders. The court held that the decree was capable of being executed by way of eviction, as the right to possession necessarily includes the right to remove those in unlawful occupation. Accordingly, the court allowed the application for eviction and awarded costs to the applicant.
Court Disposition
Application allowed; eviction order granted; costs awarded to applicant.
Orders
- The respondents are to be evicted from land parcel KABETE/LOWER KABETE/1799.
- The applicant is awarded the costs of the application.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ENVIRONMENTAL AND LAND DIVISION
ELC. CIVIL SUIT NO. 115 OF 2007
DANIEL KIMANI MBUGUA ………………… …….. 1ST PLAINTIFF
LEONARD KAMAU MBUGUA. …………………….. 2ND PLAINTIFF
JOSEPH CHEGE WACEKE…………………………….3RD PLAINTIFF
JOHN CHEGE MBUGUA………………………….…….4TH PLAINTIFF
VERSUS
HANNAH MWIHAKI KAMAU…………………………….DEFENDANT
RULING
Coming up before me for determination is the Notice of Motion dated 13th June 2013 in which the Judgment Creditor seeks for orders that:
The Respondents, namely Grace Muthoni Kangethe, Lucy Wanjira, Leonard Kamau Mbugua, Joseph Chege Waceke and John Chege Mbugua, be evicted from the land parcel KABETE/LOWER KABETE/1799 (hereinafter referred to as the “suit property”) as this court decided against them yet they have refused to give vacant possession in defiance of the judgment and order number 3 in the Decree.
That costs of this motion be provided for.
The Application is based on the grounds appearing on the face of it together with the Supporting Affidavit of the Judgment Creditor, Hannah Mwihaki Kamau, sworn on 12th June 2013 in which she averred that the Plaintiffs/Respondents brought this suit against her in order to recover the suit property on the allegation that they had lived there peacefully for over 12 years. She further averred that the suit was heard fully and the court delivered judgment on 5th November 2012 dismissing he suit and awarding her costs. She further averred that on 20th February 2013 the Decree was issued and order number 3 directed that “the Defendant has shown that she is the registered proprietor of the said land and is entitled to quiet possession.” She confirmed that the said Decree had been served upon the Respondents and their advocate but have defiantly and contemptuously refused to vacate the land despite notice to do so. She further averred that the Respondents’ Advocates Mr. G. Kamonde had written back stating that the court did not provide for eviction.
In response thereto, the said Respondent’s Advocate filed his Affidavit sworn on 4th October 2013 in which he averred that the Application was opposed on the ground that the court’s judgment dated 8th November 2012 did not issue a decree capable of being executed in the method requested by the Applicant.
Only the Judgment Creditor filed written submissions which have been read and taken into account by the court.
I have studied the Judgment delivered by Lady Justice Rose Ougo on 8th November 2012 and the Decree extracted therefrom dated 20th February 2013. I confirm that indeed, Judge Ougo did make the finding that the Defendant therein has shown that she is the registered proprietor of the suit property and is therefore entitled to quiet possession thereof. It follows that the Plaintiffs were supposed to vacate the suit property to allow the Defendant to take possession. This being very clear to me, I hereby proceed to allow the Judgment Creditor’s Application and do award her the costs of the Application.
DELIVERED AND SIGNED IN NAIROBI THIS 16TH
DAY OF MAY 2014.
MARY M.GITUMBI
JUDGE