[2008] KEHC 447 (KLR)
The court found that the issue of eviction had already been determined in its ruling of 21st February 1996, making the plaintiff's renewed request for an eviction order res judicata. However, the court recognized that the defendant had failed to comply with the previous eviction order and had wrongfully re-entered...
Source-derived case information.
- Citation
- [2008] KEHC 447 (KLR)
- Parties
- Plaintiff: Joseph Mwangi Irungu (Substituted by Susan Wamuyu Mwangi); Defendant: Geoffrey Mwangi Wachira
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2 of 1990
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Eviction and Enforcement of Judgment
- Outcome
- Application allowed in part; enforcement of prior eviction order authorized; costs awarded to plaintiff and auctioneer.
- Judges
- MM Kasango
- Legal Topics
- Eviction Orders, Enforcement of Judgments, Res Judicata, Contempt of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mwangi Irungu (Substituted by Susan Wamuyu Mwangi)
Plaintiff
Geoffrey Mwangi Wachira
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Eviction and Enforcement of Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to seek a fresh eviction order against the defendant from parcel No. IRIAINI/GATUNDU/119.
- 2 Whether the application for eviction is barred by the doctrine of res judicata.
- 3 Whether the defendant is entitled to further time to vacate the suit property after previous non-compliance with court orders.
Ratio Decidendi
The court found that the issue of eviction had already been determined in its ruling of 21st February 1996, making the plaintiff's renewed request for an eviction order res judicata. However, the court recognized that the defendant had failed to comply with the previous eviction order and had wrongfully re-entered the property during the pendency of criminal proceedings. The defendant's request for additional time to vacate was denied due to his prior non-compliance and lack of good faith, as he had already been granted ample time to vacate but failed to do so. The court held that justice required the restoration of the plaintiff to her property and authorized the enforcement of the...
Court Disposition
Application allowed in part; enforcement of prior eviction order authorized; costs awarded to plaintiff and auctioneer.
Orders
- The plaintiff shall evict and/or remove Geoffrey Mwangi Wachira, his family, servants and/or agents from parcel land No. IRIAINI/GATUNDU/119 as ordered by this court on 21st February 1996.
- Green Bells auctioneer and official court brokers Nyeri are authorized to carry out actual eviction and/or removal of Geoffrey Mwangi Wachira, his family, servants and/or agents and remove all movable property of the said Geoffrey Mwangi Wachira.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Case 2 of 1990
JOSEPH MWANGI IRUNGU (Substituted
by SUSAN WAMUYU MWANGI ..........……….. PLAINTIFF
VERSUS
GEOFFREY MWANGI WACHIRA ...……….. DEFENDANT
RULING
The Notice of motion dated 21st October 2008 is brought by the plaintiff. It is brought under order XXI rule 30 (1) of the Civil Procedure Rules. By that application the plaintiff seeks in the first prayer an order of eviction of the defendant, his family, servants and agents from parcel No. IRIAINI/GATUNDU/119. In the second prayer the plaintiff seeks an order that Green Bells Auctioneers be authorized to carry out the eviction or removal of the defendant. In the third prayer the plaintiff seeks an order that the officer commanding police station Karatina be ordered to provide security during that exercise. In the final prayer the plaintiff seeks costs for the auctioneers and herself. The background in this matter is that judgment was entered against the defendant on 16th June 1994 whereby the court declared the plaintiff the rightful of the suit property. By that judgment the defendant was ordered to vacate that property. At sometime in 1997 the defendant requested for time to remove his coffee on the land. He was given upto 31st May 1998 to do so. He did not move out of the land as ordered. On 7th January 2008 the defendant was evicted by the auctioneer following a court order. As a result of that action the defendant made a complaint to the police that the plaintiff and his family had destroyed his properties. The plaintiff and his family were arrested and arraigned before the Karatina SRM’s court. The defendant took that opportunity of the criminal trial to return on the suit land. To date the defendant is still on the land. The defendant filed an appeal against the judgement of the High Court but the court of appeal declined to hear his appeal until he purged his contempt. The plaintiff in bringing the present application ought to realize that this court by its ruling dated 21st February 1996 did order the eviction of the defendant and his family from the suit land. That being so the first prayer of the notice of motion of 21st October 2008 cannot be entertained again for indeed would be Res judicata. The defendant responded to that application by saying that if he is evicted immediately he would be rendered destitute. This is because he had coffee bushes, bananas, macadamia trees and other trees on the parcel of land. He states that he had been in occupation of that land since 1958. he prays that this court will give him one year to enable him to relocate to an alternative place. In seeking that time the court is very conscious of the fact that the defendant previously was given one year to vacate the premises but failed to do so. If indeed the defendant was acting in good faith having knowledge that judgement was entered against him in 1994 and also having the knowledge that the court of appeal has refused to entertain his appeal until he does purge the contempt he ought to by now have vacated the premises to enable him to sue his right of appeal. He has not done so and therefore he does not deserve the mercy of this court. The plaintiff has wrongfully been kept out her property since 1994. It is time for justice to arise on her behalf and restore her to her property. The ruling of this court is in the following orders:-
1. That the plaintiff shall evict and or remove Geoffrey Mwangi Wachira, his family, servants and or agents from parcel land No. IRIAINI/GATUNDU/119 as ordered by this court on 21st February 1996.
2. That Green Bells auctioneer and official court brokers Nyeri are hereby authorized to carry out actual eviction and or removal of the said Geoffrey Mwangi Wachira, his family, servants and or agents and remove all movable property of the said Geoffrey Mwangi Wachira.
3. An order is hereby issued that the officer commanding police station Karatina do provide security during the eviction and removal of Geoffrey Mwangi Wachira from that property and do ensure that peace is maintained.
4. The court does hereby order the defendant to pay the auctioneer expenses and the plaintiff’s costs of the notice of motion dated 21st October 2008.
Dated and delivered at Nyeri this 17th day of December 2008.
MARY KASANGO
JUDGE