Gilbert Gitari Bore & Omari Marijan Omari v Kenya Urban Roads Authority, Administrator – Chuka Township, County Government of Tharaka Nithi & Hyper Constructions & Equipment Company Ltd [2021] KEELC 2863 (KLR)
- Citation
- [2021] KEELC 2863 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- Environment and Land Court
- Posture
- Land and Environment Case / Post Judgment Ruling on Execution and Costs
- Case number
- Environment & Land Case 1 of 2020
- Language
- English
More details
- Court
- Environment and Land Court
- Posture
- Land and Environment Case / Post Judgment Ruling on Execution and Costs
- Case number
- Environment & Land Case 1 of 2020
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that since the judgment delivered on 13th October, 2020 had not been appealed against or set aside, the plaintiffs were entitled to execute it. Furthermore, as the 2nd and 3rd defendants had, by consent with the plaintiffs, been removed from the suit, costs would only be payable by the 1st and 4th defendants. The court thus granted liberty to the plaintiffs to execute the judgment and awarded costs against the 1st and 4th defendants only.
Court disposition
Plaintiffs granted liberty to execute judgment; costs awarded against 1st and 4th defendants only.
Orders
- The plaintiffs are at liberty to execute the Judgment delivered on 13th October, 2020 as it has not been appealed against or set aside.
- Costs are awarded to the plaintiffs against the 1st and 4th defendants.
02
Material facts
Parties
Gilbert Gitari Bore
PlaintiffOmari Marijan Omari
PlaintiffKenya Urban Roads Authority
Defendant Counsel: KiongoThe Administrator – Chuka Township
DefendantThe County Government of Tharaka Nithi
DefendantHyper Constructions & Equipment Company Ltd
Defendant03
Procedural history
Posture
Land and Environment Case / Post Judgment Ruling on Execution and Costs
04
Questions and positions
Legal issues
- 01
Whether the plaintiffs are entitled to execute the judgment delivered on 13th October, 2020.
- 02
Whether costs should be awarded against all defendants or only those remaining after consent withdrawal.
Party arguments
- Applicant
- The plaintiffs, through counsel, argued that since the 2nd and 3rd defendants had withdrawn from the suit by consent, the plaintiffs should be allowed to execute the judgment against the remaining defendants. They further submitted that the judgment had not been appealed or set aside, and thus execution should proceed.
- Respondent
- The 1st defendant, represented by the Attorney General, had been granted time to file an application to set aside the judgment but failed to do so within the stipulated period. No substantive argument against execution was presented at this stage.
05
Court’s reasoning
Legal principles
- 01
Civil Procedure Act (Cap 21), Section 34
A judgment that has not been appealed or set aside is enforceable by the successful party.
- 02
Civil Procedure Act (Cap 21), Section 27
Costs follow the event and are awarded against parties remaining in the suit unless otherwise ordered by consent.
06
Ratio, limits and disposition
Ratio decidendi
The court held that since the judgment delivered on 13th October, 2020 had not been appealed against or set aside, the plaintiffs were entitled to execute it. Furthermore, as the 2nd and 3rd defendants had, by consent with the plaintiffs, been removed from the suit, costs would only be payable by the 1st and 4th defendants. The court thus granted liberty to the plaintiffs to execute the judgment and awarded costs against the 1st and 4th defendants only.
Court disposition
Plaintiffs granted liberty to execute judgment; costs awarded against 1st and 4th defendants only.
- The plaintiffs are at liberty to execute the Judgment delivered on 13th October, 2020 as it has not been appealed against or set aside.
- Costs are awarded to the plaintiffs against the 1st and 4th defendants.
Source and reliance status
Environment and Land Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Environment and Land Court
Judgment
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. 1 OF 2020
GILBERT GITARI BORE........................................................1ST PLAINTIFF
OMARI MARIJAN OMARI...................................................2ND PLAINTIFF
VERSUS
KENYA URBAN ROADS AUTHORITY..............................1ST DEFENDANT
THE ADMINISTRATOR – CHUKA TOWNSHIP...............2ND DEFENDANT
THE COUNTY GOVERNMENT OF THARAKA NITHI.....3RD DEFENDANT
HYPER CONSTRUCTIONS & EQUIPMENT
COMPANY LTD .................................................................4TH DEFENDANT
RULING
1. This matter came up for mention on 31st May, 2021 to confirm if or if not the AG had filed an application to set aside the Judgment delivered by the court on 13th October, 2020. On 12. 5.2021, Mr. Kiongo, for the AG was granted 14 days to file the intended application.
2. Upon expiration of the 14 days granted to the AG, on 31st May, 2021, Ms. Mbogo asked the court to allow the plaintiffs to execute their Judgment. She said that as the 2nd and 3rd defendants with the consent of the Plaintiffs had pulled out of the case, the plaintiffs should be at liberty to execute this court’s Judgment delivered on 13th October, 2020.
3. I do note that the Judgment delivered on 13th October, 2020 awarded costs to the plaintiffs against the defendants. However, as by consent the plaintiffs and the 2nd and 3rd defendants allowed the 2nd and 3rd defendants to be removed from the suit, costs will only be payable by the 1st and 4th defendants.
4. In the circumstances, the following orders are issued:
a) The plaintiffs are at liberty to execute the Judgment delivered on 13th October, 2020 as it has not been appealed against or set aside.
b) Costs are awarded to the plaintiffs against the 1st and 4th defendants.
DELIVERED IN OPEN COURT AT CHUKA THIS 16TH DAY OF JUNE, 2021 IN THE PRESENCE OF:
CA: Ndegwa
Kiongo for AG for 1st defendant.
P. M. NJOROGE,
JUDGE.
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