[2018] KEELC 598 (KLR)
The court found that a valid judgment and decree for eviction were issued in 2009, and the respondent did not appeal or otherwise challenge the judgment. The respondent's arguments regarding the merits of his occupation and alleged fraud were attempts to reopen issues already determined by the court. Since the...
Source-derived case information.
- Citation
- [2018] KEELC 598 (KLR)
- Parties
- Applicant: Enos Matangwe Sikoyo; Respondent: Ismael Sakwa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 49 of 2018
- Procedural Posture
- Eviction Application / Ruling on Post Judgment Eviction Application
- Outcome
- Application allowed; eviction order granted as prayed.
- Judges
- NA Matheka
- Legal Topics
- Eviction Orders, Execution of Decree, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Enos Matangwe Sikoyo
Applicant
Ismael Sakwa
Respondent
Procedural Posture
Eviction Application / Ruling on Post Judgment Eviction Application
Legal Issues
- 1 Whether the applicant is entitled to an eviction order against the respondent from parcel NO. E/WANGA/MUNG’ANG’A/1144.
- 2 Whether the decree for eviction issued in 2009 remains enforceable.
- 3 Whether the respondent's continued occupation is lawful in light of the existing judgment and decree.
Ratio Decidendi
The court found that a valid judgment and decree for eviction were issued in 2009, and the respondent did not appeal or otherwise challenge the judgment. The respondent's arguments regarding the merits of his occupation and alleged fraud were attempts to reopen issues already determined by the court. Since the decree remains in force and the respondent has failed to vacate the land, the applicant is entitled to enforcement of the eviction order. The court emphasized that the respondent cannot resist execution by raising matters that should have been addressed in an appeal or review. Accordingly, the application for eviction was granted as prayed.
Court Disposition
Application allowed; eviction order granted as prayed.
Orders
- An eviction order is issued for the forceful ejection of the defendant, his relatives, servants, agents, employees and anyone claiming through him from parcel NO. E/WANGA/MUNG’ANG’A/1144 forthwith.
- The officer-in-charge, Shianda Police Station is ordered to effect the eviction order.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC CASE NO. 49 OF 2018
ENOS MATANGWE SIKOYO..........................PLAINTIFF/APPLICANT
VERSUS
ISMAEL SAKWA........................................DEFENDANT/RESPONDENT
RULING
This application is dated 30th December 2017 and is brought under order 22 rule 29 of the Civil Procedure Rules and seeks the following orders:-
(a) The honourable court be pleased to issue an eviction order for the forceful ejection of the defendant, his relatives, servants, agents, employees and or anybody claiming through him from the suit parcel of land NO. E. WANGA/MUNG’ANG’A/1144 forthwith.
(b) The officer-in-charge, Shianda Police Station be ordered to effect the eviction order aforesaid.
(c) Costs of this application be borne by the defendant/respondent.
It is based on the annexed affidavit of Enos Matangwe Sikoyo, plaintiff/applicant and on the following grounds that, vide a judgment delivered on 12th November, 2009 and a decree extracted herein on 14th December, 2009 this honourable court issued an order for the eviction of the defendant, his relatives, servants and or agents from the plaintiff/applicant’s land parcel NO. E/WANGA/MUNG’ANG’A/1144 which decree remains in force to-date.That the defendant/respondent and his relatives, servants and or agents have refused to vacate the suit land thereby necessitating their ejection therefrom.That it is imperative and necessary that the orders sought herein be granted in order to bring this litigation to an end and to enable the plaintiff/decree-holder enjoy the fruits of his success in litigation.
The respondent submitted that, the said application is wanting as a party can take a grace of approximately ten (10) years to execute his/her decree.That the purported decree has never been extracted and served upon him as required. That he bought the suit land from Noah Shitabule Bushuru in the year 2000 and he has been peacefully, openly without any interruption from the applicant in occupation and extensively developed the same.That the purchase of land happened after he confirmed that the land belonged to Noah Shitabule Bushuru as a co-owner from the land registry on 26/10/2000. That the applicant demand amounts to fraud as he encroached and trespassed on the land and interfered with the boundary features.That the applicant does not warrant the orders sought as no sufficient grounds have been tendered to that effect and stand not to suffer any loss should his two (2) acres be curved out from the suit land which about 3 acres.
This court has carefully considered the application and the submissions herein. On perusal of the court file I find that the matter was heard and determined and a judgment delivered on 12th November, 2009 and a decree extracted herein on 14th December, 2009 this court issued an order for the eviction of the defendant, his relatives, servants and or agents from the plaintiff/applicant’s land parcel NO. E/WANGA/MUNG’ANG’A/1144 which decree remains in force to-date. The respondent in his replying affidavit is trying to reopen the case on why he should not be evicted. However, he never filed any appeal against the said judgement and the same still stands. I find this application has merit and I grant the same as prayed.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 20TH DAY NOVEMBER, 2018.
N.A. MATHEKA
JUDGE