[2018] KEELC 953 (KLR)
The court found that the plaintiff was entitled to the eviction order sought, as the Court of Appeal had already determined the substantive rights in its judgment of 18th December 2014, granting the plaintiff vacant possession of the suit property. There was no opposition to the application, and the court emphasized...
Source-derived case information.
- Citation
- [2018] KEELC 953 (KLR)
- Parties
- Plaintiff: David Sironga Ole Tukai; Defendant: Francis Arap Muge; Defendant: Samuel Kiprotich Arap Kirui; Defendant: Johannah Kiprono Arap Mosonik; Defendant: Kapkween Farmers Co-operative Society Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 253 of 2005
- Procedural Posture
- Notice of Motion / Ruling on Post Judgment Eviction Application
- Outcome
- Application allowed. Eviction order granted subject to thirty days' notice to defendants.
- Judges
- DO Ohungo
- Legal Topics
- Eviction Orders, Vacant Possession, Execution of Decree, Notice to Judgment Debtor
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Sironga Ole Tukai
Plaintiff
Francis Arap Muge
Defendant
Samuel Kiprotich Arap Kirui
Defendant
Johannah Kiprono Arap Mosonik
Defendant
Kapkween Farmers Co-operative Society Ltd
Defendant
Procedural Posture
Notice of Motion / Ruling on Post Judgment Eviction Application
Legal Issues
- 1 Whether the plaintiff is entitled to an eviction order against the defendants from parcel Narok/Cis Mara/Ololulunga/161 pursuant to the Court of Appeal judgment.
- 2 Whether the eviction should be conducted in compliance with statutory requirements and the decree issued.
- 3 Whether the defendants should be given notice and an opportunity to vacate voluntarily before forcible eviction.
Ratio Decidendi
The court found that the plaintiff was entitled to the eviction order sought, as the Court of Appeal had already determined the substantive rights in its judgment of 18th December 2014, granting the plaintiff vacant possession of the suit property. There was no opposition to the application, and the court emphasized that the eviction must be carried out strictly in accordance with the appellate judgment and the law. The court further held that the defendants should be given thirty days' notice to vacate voluntarily, failing which eviction would proceed under the supervision of the police and in compliance with the Land Act and Civil Procedure Rules. The costs of the application,...
Court Disposition
Application allowed. Eviction order granted subject to thirty days' notice to defendants.
Orders
- Defendants to vacate parcel Narok/Cis Mara/Ololulunga/161 within thirty days of service of the orders; in default, eviction to ensue.
- Eviction order issued to Jeremiah K. Muchendu t/a Icon Auctioneers to evict defendants and all members of Kapkween Farmers Co-operative Society Limited from the suit property.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAKURU
HCC No. 253 OF 2005
DAVID SIRONGA OLE TUKAI.............................................................PLAINTIFF
VERSUS
FRANCIS ARAP MUGE,
SAMUEL KIPROTICH ARAP KIRUI,
JOHANNAH KIPRONO ARAP MOSONIK
(Sued as the Chairman, Secretary and Treasure respectively of
KAPKWEEN FARMERS CO-OPERATIVE SOCIETY LTD)......DEFENDANTS
RULING
1. This is a ruling in respect of Notice of Motion dated 8th February 2018, filed by the plaintiff. The application is brought under Sections 1A, 1B and 3A of the Civil Procedure Act. The following Orders are sought:
a) That an eviction Order be issued to Jeremiah K. Muchendu t/a Icon Auctioneers, Tembo Co-Operative House, Moi Avenue, 3rd Floor, Room No. 7, P. O Box 40781 – 00100 Nairobi, Cell phone: 0720432189 directing him to evict and remove all the defendants, their agents, their servants and all the members of Kapkween Farmers Co-operative Society Limited together with all their structures, houses and other buildings from the plaintiff’s parcel of land known as Narok/Cis Mara/Ololulunga/161 until vacant possession thereof is handed over to the plaintiff. The Officer Commanding Narok County Police be ordered to supervise the eviction exercise and to provide the necessary security to the said auctioneers to ensure that the eviction exercise and to provide the necessary security to the said auctioneers to ensure that the eviction exercise is carried out peacefully and completely.
b) That the costs of this application and the auctioneers’ costs and the eviction expenses be borne by the defendants.
2. It was initially indicated in the application that the eviction be carried out by Henry K. Nzyoku t/a Icon Auctioneers but this was later amended to read Jeremiah K. Muchendu t/a Icon Auctioneers.
3. The application is supported by an affidavit sworn by the plaintiff. He deposed that following a judgment delivered by the Court of Appeal on 18th December 2014, he is entitled to vacant possession as per the decree issued by the court on 18th December 2014.
4. Though served, the defendant did not oppose the application. Counsel for the plaintiff therefore urged the court to allow the application.
5. I have considered the application, the supporting affidavit and counsel’s submissions.
6. The record herein shows that through plaint dated 12th October 2005, the plaintiff sought judgment against the defendant for:
a) An eviction Order be issued so that the defendants by themselves, their agents, their servants and all the members of Kapkween Farmers Co-operative Society Limited are removed from the plaintiff’s parcel of land known as Narok/Cis Mara/Ololulunga/161 which measures 150. 5 hectares (Approx.371. 89 acres) as described in the Land Registry Map Sheet No. 132/111, 146/1 and 131/IV so that vacant possession thereof can be delivered to the plaintiff.
b) A permanent injunction be issued restraining the defendants by themselves, their agent, their servants and all the members of Kapkween Farmers Co-operative Society Limited from entering, remaining onto, trespassing on dealing with or in any manner howsoever from interfering with the plaintiff’s quiet, peaceful and exclusive possession and occupation of land parcel No. Narok/Cis/Mara/ Ololulunga/161 measuring 150. 5 hectares (approximately 371/89 acres).
c) Costs of this suit.
7. The record herein shows that indeed through judgment delivered on 18th December 2014, the Court of Appeal in Civil Appeal No. 76 of 2014 (Nairobi) David Sironga Ole Tukai v Francis Arap Muge & 2 Others allowed the appeal, set aside the judgment delivered herein by Emukule J. on 7th June 2013 and replaced it with an order allowing the plaintiff’s suit with costs. Following the said judgment of the Court of Appeal, this court issued a decree on 18th December 2014.
8. In view of the foregoing and there being no opposition to the application, I see no reason why the orders sought should not be issued but in terms of the judgment rendered by the Court of Appeal.
9. For good order, it is crucially important that the eviction be in strict compliance with the judgment of the Court of Appeal, as delivered on 18th December 2014. Further, I consider that it is prudent to give the defendants a chance to vacate on their own volition failing which an eviction should ensue. This is also in line with the provisions of Order 22 rule 18of theCivil Procedure Rules which contemplates that there should always be notice to the judgment debtor when an application for execution is made than one year after the date of the decree.
10. I therefore make the following orders:
a) The defendants to vacate from the parcel of land known as Narok/Cis Mara/Ololulunga/161 which measures 150. 5 hectares (Approx.371. 89 acres) as described in the Land Registry Map Sheet No. 132/111, 146/1 and 131/IV in terms of the decree issued herein within 30 (thirty) days of service upon them of these orders. In default, the defendants be evicted in the manner stipulated below.
b) An eviction order be issued to Jeremiah K. Muchendu t/a Icon Auctioneers, Tembo Co-Operative House, Moi Avenue, 3rd Floor, Room No. 7, P. O Box 40781 – 00100 Nairobi, Cell phone: 0720432189 directing him to evict the defendants, their agents, their servants and all the members of Kapkween Farmers Co-operative Society Limited from the plaintiff’s parcel of land known as Narok/Cis Mara/Ololulunga/161 which measures 150. 5 hectares (Approx.371. 89 acres) as described in the Land Registry Map Sheet No. 132/111, 146/1 and 131/IV so that vacant possession thereof can be delivered to the plaintiff.
c) The eviction to be done in accordance with the provisions of section 152G (1) (a), (d) to (i) of the Land Act, 2012.
d) The Officer Commanding Narok County Police to provide security during the eviction exercise.
e) Costs of the application, the auctioneer’s costs and costs of the eviction be borne by the defendants.
11. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 12th day of October 2018.
D. O. OHUNGO
JUDGE
In the presence of:
Mr Karanja for the plaintiff/applicant
No appearance for the defendant/respondent
Court Assistants: Gichaba & Lotkomoi