[2014] KEHC 2561 (KLR)
The court found that the consent order recorded on 4/9/2013 was not adopted as an order of the court and that the applicant, who is in occupation of the suit land, was not a party to the consent or the proceedings leading to the eviction order. Since the applicant did not consent to the eviction and her rights as an...
Source-derived case information.
- Citation
- [2014] KEHC 2561 (KLR)
- Parties
- Plaintiff: Fredrick Atanas Ashiono; Defendant: Aggrey Sevensson Lihanda
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Land Case 48 of 2013
- Procedural Posture
- Land and Environment Case / Ruling on Application to Set Aside Consent and Stay Eviction
- Outcome
- Application allowed; consent judgment and eviction order set aside; applicant enjoined; matter to proceed to full hearing.
- Judges
- SJ Chitembwe
- Legal Topics
- Eviction Orders, Consent Judgments, Joinder of Parties, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Atanas Ashiono
Plaintiff
Aggrey Sevensson Lihanda
Defendant
Procedural Posture
Land and Environment Case / Ruling on Application to Set Aside Consent and Stay Eviction
Legal Issues
- 1 Whether the consent order recorded on 4/9/2013 should be set aside.
- 2 Whether the eviction order should be stayed and set aside given the applicant was not a party to the consent.
- 3 Whether the applicant should be enjoined in the suit.
Ratio Decidendi
The court found that the consent order recorded on 4/9/2013 was not adopted as an order of the court and that the applicant, who is in occupation of the suit land, was not a party to the consent or the proceedings leading to the eviction order. Since the applicant did not consent to the eviction and her rights as an occupant were not considered, the court held that the application to set aside the consent and eviction order was merited. The applicant was therefore enjoined in the suit, and the consent judgment and eviction order were set aside to allow the matter to proceed to full hearing with all relevant parties present.
Court Disposition
Application allowed; consent judgment and eviction order set aside; applicant enjoined; matter to proceed to full hearing.
Orders
- The consent judgment recorded on 4/9/2013 is set aside.
- The eviction order is set aside.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KAKAMEGA
LAND & ENVIRONMENT CASE NO: 48 OF 2013
FREDRICK ATANAS ASHIONO...............................................PLAINTIFF
VERSUS
AGGREY SEVENSSON LIHANDA......................................DEFENDANT
R U L I N G
The application dated 10/12 2013 seeks an order of stay of the eviction order herein and setting aside the consent order recorded on 4/9/2013. Mr. Mukavale, counsel for the applicant submitted that the defendant is not in occupation of plot numberISUKHA/KAMBIRI/1671. He however entered into a consent to have himself evicted. The end result is that it is the applicant who was not a party to the suit who is now being evicted. The applicant lives on the suit land with her children and mother in law.
The plaintiff filed a replying affidavit sworn on 4th March, 2014. He contends that the suit land was old to the defendant by the applicant’s husband. He bought the land from the defendant. He has annexed a copy of his title deed issued on 26/10/2011.
I have read the pleading herein and the current application and the replying affidavit. The defendant filed a statement of admission that is not dated but was filed on 20th February 2013. The defendant contends in his statement that he is ready to vacate the suit land immediately. A consent was recorded on 4/9/2013 before the Deputy Registrar. That consent led to the eviction order. It is clear that the consent was not adopted as an order or this court. It is also clear that the defendant does not reside on the suit land.
The applicant contends that her husband with whom they have nine children disappeared and his whereabouts is unknown. The defendant alleges to have bought the suit land from the applicant’s husband. Since the applicant is in occupation of the suit land and did not consent to the eviction order, I do find that her application is merited and the same is granted as prayed. The consent judgment is hereby set aside. The applicant is hereby enjoined in this suit and the eviction order I also set aside. The defendant to file her defence and matter to proceed for full hearing before the Land and Environment Court.
Dated, delivered and signed at Kakamega this 16th day of September 2014.
SAID J. CHITEMBWE
JUDGE