[2011] KEHC 3625 (KLR)
The court found that the Plaintiffs, as duly appointed executors of the late Paul Bindstrup Stoffregen's estate, had established their legal right to possession of Land Reference No.11392/2. The Defendants, having failed to file any response or appear in court despite proper service, did not contest the Plaintiffs'...
Source-derived case information.
- Citation
- [2011] KEHC 3625 (KLR)
- Parties
- Plaintiff: David Jonathan Grantham; Plaintiff: Gary Farrant; Defendant: Arnold Makokha Simiyu; Defendant: Highrise Security Services Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 889 of 2010
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Eviction and Re Entry
- Outcome
- Application allowed as unopposed; eviction and re-entry orders granted.
- Judges
- CM Njagi
- Legal Topics
- Eviction Orders, Estate Administration, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Jonathan Grantham
Plaintiff
Gary Farrant
Plaintiff
Arnold Makokha Simiyu
Defendant
Highrise Security Services Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Eviction and Re Entry
Legal Issues
- 1 Whether the Plaintiffs, as executors of the deceased's estate, are entitled to orders for eviction of the Defendants from Land Reference No.11392/2.
- 2 Whether the Defendants are lawfully occupying the suit premises or are trespassers.
- 3 Whether the Plaintiffs are entitled to re-entry and police assistance in execution of the orders.
Ratio Decidendi
The court found that the Plaintiffs, as duly appointed executors of the late Paul Bindstrup Stoffregen's estate, had established their legal right to possession of Land Reference No.11392/2. The Defendants, having failed to file any response or appear in court despite proper service, did not contest the Plaintiffs' claims or demonstrate any lawful right to occupy the premises. The court held that the Plaintiffs were entitled to the orders sought for eviction and re-entry, and that police assistance could be used if necessary to enforce the orders. The application was therefore granted as unopposed, in accordance with the Civil Procedure Rules and the principles governing estate...
Court Disposition
Application allowed as unopposed; eviction and re-entry orders granted.
Orders
- The Defendants' agents, employees or servants are ordered to vacate the premises being Land Reference No.11392/2.
- The Plaintiffs are allowed to re-enter the premises being Land Reference No.11392/2.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL & TAX DIVISION – MILIMANI
CIVIL CASE NO. 889 OF 2010
DAVID JONATHAN GRANTHAM and
GARY FARRANT ………………………………………… PLAINTIFFS
VERSUS
ARNOLDMAKOKHA SIMIYU ……………………. 1ST DEFENDANT
HIGHRISE SECURITY SERVICES LTD. ………… 2ND DEFENDANT
R U L I N G
By this application, the Plaintiffs seek orders that the Defendants’ agents, employees or servants be ordered to vacate the suit premises being Land Reference No.11392/2 and that the Plaintiffs be allowed to re-enter the said premises. In facilitating the execution of the eviction and re-entry, the Plaintiffs seek a further order that the assistance of the Spring Valley Police be used, if necessary.
The application is brought by a Notice of Motion dated 10th February, 2011 and taken out under Order 40 Rules 2, 4and10 (b)of theCivil Procedure Rules. It is supported by the affidavit of Kananu Kinya Mutea, Advocate, sworn on 10th February, 2011 and is made on the grounds that –
(a)The true and proper owner of the premises is the late Paul Bindstrup Stoffregen who appointed the Plaintiffs the executors of his Estate.
(b)The Defendants are strangers to the premises and are obstructing the use of the same by the beneficiaries of the deceased’s Estate; and
(c)That it is in the interests of justice that this matter be concluded at the earliest to facilitate the Winding Up of the Estate of the deceased.
When the application came for hearing on 17th February, 2011 Ms. Mutea appeared for the Applicants but the Defendants did not attend and were not represented. An affidavit of service on record sworn by one Kennedy Musyoka Malombe, a licensed Court Process Server of this Court, shows that M/S Veronica & Miencha, the Advocates on record for the Defendants, were duly served with the application under certificate of urgency on 14th February, 2011 at 1. 00 p.m. However, they did not appear in Court on the hearing date. As they failed to file either grounds of opposition, a replying affidavit, or attend Court on the appointed date, the Court finds that the application is unopposed and the Applicants are entitled to the orders sought.
For the above reasons, the Court hereby makes the following orders –
(i)That the Defendant’s agents, employees or servants be and are hereby ordered to vacate the premises being Land Reference No.11392/2.
(ii)That the Plaintiff be and is hereby allowed to re-enter the premises being Land Reference No.11392/2.
(iii)That in facilitating the execution of the eviction and re-entry, the assistance of the Spring Valley Police be used, if necessary.
Orders accordingly.
DATED and DELIVERED at NAIROBI this 18th day of February, 2011.
L. NJAGI
JUDGE