[2013] KEELC 44 (KLR)
The court found that the plaintiff, having lawfully purchased the suit land through a public auction following the defendant's default and subsequent exercise of statutory power of sale by the bank, was entitled to possession. The defendant's continued occupation after transfer and judgment was unlawful. The court...
Source-derived case information.
- Citation
- [2013] KEELC 44 (KLR)
- Parties
- Plaintiff: Johnstone Amulioto Ayub; Defendant: Peter Mwangi Njuguna
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 895 of 2012
- Procedural Posture
- Miscellaneous Application / Post Judgment Eviction Application
- Outcome
- Application allowed. Eviction order granted.
- Legal Topics
- Statutory Power of Sale, Eviction Orders, Public Auction Sales, Execution of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnstone Amulioto Ayub
Plaintiff
Peter Mwangi Njuguna
Defendant
Procedural Posture
Miscellaneous Application / Post Judgment Eviction Application
Legal Issues
- 1 Whether the plaintiff is entitled to an eviction order against the defendant following a valid transfer of land after public auction.
- 2 Whether the defendant's continued occupation of the suit land is lawful after judgment and decree for eviction.
Ratio Decidendi
The court found that the plaintiff, having lawfully purchased the suit land through a public auction following the defendant's default and subsequent exercise of statutory power of sale by the bank, was entitled to possession. The defendant's continued occupation after transfer and judgment was unlawful. The court held that any irregularity in citing the wrong procedural order did not affect the substance of the application. Accordingly, the court granted the eviction order, directed the plaintiff to apply for execution through a bailiff, and ordered police assistance for the eviction. The defendant was ordered to bear the costs of the application and eviction.
Court Disposition
Application allowed. Eviction order granted.
Orders
- The defendant shall be evicted from Moi's Bridge/Ziwa Block 16 (Chebarus)/114.
- The plaintiff is to apply for execution by way of an eviction order and appoint a bailiff to execute the order.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E&L 895 OF 2012
Formerly HCC 140 of 2012
JOHNSTONE AMULIOTO AYUB ....................................... PLAINTIFF
VS
PETER MWANGI NJUGUNA.............................................. DEFENDANT
RULING
The plaintiff/applicant has brought an application Under Section 3 and 3A of the Civil Procedure Act, and Order 29 (1) of the Civil Procedure Rules. He wants this court to issue orders to have the defendant evicted from the land parcel Moi's Bridge/Ziwa Block 16 (Chebarus)/ 114.
The plaintiff in this suit purchased the suit land by way of public auction. The suit land was initially owned by the defendant who had charged it to the Bank of Baroda Ltd. He defaulted and the bank in exercise of its statutory powers of sale, sold the land to the plaintiff by way of public auction. The property was then transferred to the plaintiff. The defendant however remained on the suit land despite the transfer to the plaintiff. The plaintiff then filed this suit seeking to have the defendant evicted from the suit land.
Judgement was duly entered for the plaintiff on 2nd May 2013. The defendant has been served with the decree but has refused to leave the land. It is for this reason that the plaintiff now seeks orders to have the defendant evicted or removed by the OCS Matunda Police Station.
Although the application is said to be premised upon Order 29, that cannot be so, for Order 29 deals with proceedings against the Government. I will take this to be a mere irregularity which does not affect the substance of the application.
In my view, this application must succeed. The plaintiff needs to enjoy the parcel of land which is now his. I therefore issue orders that the defendant be evicted from the suit land. I direct the plaintiff to apply for execution by way of an eviction order and appoint a bailiff to execute the order . I also direct the OCS Matunda Police Station to provide security to the court bailiff when executing the eviction order.
The defendant shall bear the costs of this application and the costs of eviction.
It is so ordered.
DATED, SIGNED AND DELIVERED THIS 3RD DAY OF OCTOBER 2013
JUSTICE MUNYAO SILA
ENVIRONMENT AND LAND COURT AT ELDORET
Read in open Court
In the Presence of:-
Miss J.C. Tarus holding brief for Miss Mufutu of M/s Manani Lilan & Co for applicant.
Defendant absent