[2021] KEELC 3034 (KLR)
The court found that its judgment of 22nd September, 2017, ordering the eviction of the Defendants from Mavoko Town Block 3/2729, had not been stayed by any court. The Defendants' application for leave to appeal out of time and their request for a stay had not resulted in any formal stay order. In the absence of a...
Source-derived case information.
- Citation
- [2021] KEELC 3034 (KLR)
- Parties
- Plaintiff: Joseph Ndava Nthuka; Plaintiff: Ruth Kamene Nduva; Defendant: Raphael Musila Mutiso; Defendant: Mathew Mutiso; Defendant: Kaloki Musila; Defendant: Nzioka Musila
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 220 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Enforcement Application
- Outcome
- Plaintiffs' application allowed; enforcement of eviction ordered; costs awarded to Plaintiffs.
- Judges
- OA Angote
- Legal Topics
- Eviction Orders, Enforcement of Judgments, Stay of Execution, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ndava Nthuka
Plaintiff
Ruth Kamene Nduva
Plaintiff
Raphael Musila Mutiso
Defendant
Mathew Mutiso
Defendant
Kaloki Musila
Defendant
Nzioka Musila
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Enforcement Application
Legal Issues
- 1 Whether the court should order the O.C.S Joska Police Station to enforce the decree by evicting the Defendants from Mavoko Town Block 3/2729.
- 2 Whether the Defendants are entitled to a stay of execution pending the determination of their application for leave to appeal out of time.
- 3 Whether the Plaintiffs are entitled to costs of the application.
Ratio Decidendi
The court found that its judgment of 22nd September, 2017, ordering the eviction of the Defendants from Mavoko Town Block 3/2729, had not been stayed by any court. The Defendants' application for leave to appeal out of time and their request for a stay had not resulted in any formal stay order. In the absence of a stay, the Plaintiffs were entitled to enforce the judgment. The court therefore allowed the Plaintiffs' application for enforcement, directing the O.C.S Joska Police Station to carry out the eviction and awarding costs to the Plaintiffs.
Court Disposition
Plaintiffs' application allowed; enforcement of eviction ordered; costs awarded to Plaintiffs.
Orders
- The Officer Commanding Station (O.C.S) Joska Police Station to enforce the decree issued on 12th November, 2019 by forcefully evicting the Defendants from parcel of land known as Mavoko Town Block 3/2729.
- The Defendants to pay the Plaintiffs the costs of the application.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 220 OF 2010
JOSEPH NDAVA NTHUKA.........................................................1ST PLAINTIFF
RUTH KAMENE NDUVA...........................................................2ND PLAINTIFF
VERSUS
RAPHAEL MUSILA MUTISO.................................................1ST DEFENDANT
MATHEW MUTISO..................................................................2ND DEFENDANT
KALOKI MUSILA.....................................................................3RD DEFENDANT
NZIOKA MUSILA.....................................................................4TH DEFENDANT
RULING
1. In the Application dated 5th December, 2019, the Plaintiffs prayed for the following orders:
a) That the Officer Commanding Station (O.C.S) Joska Police Station do enforce the Decree issued by this court on 12th November, 2019 by forcefully evicting the Defendants from parcel of land known as Mavoko Town Block 3/2729.
b) That the Defendants to pay the Plaintiffs the costs of the Application.
2. The Application is supported by the Affidavit of the 1st Plaintiff who has deponed that this court delivered its Judgment in this matter on 22nd September, 2017; that in the Judgment, the court allowed for the eviction of the Defendants from the suit property and that in order to effectively enforce the Judgment, the OCS should be incorporated.
3. In reply, the 1st Defendant, on behalf of himself and the other Defendants, deponed that when Judgment was delivered in this suit, no notice was issued to them; that they applied for extension of time to lodge an Appeal to the Court of Appeal and that upon refusal by the single Judge to grant them leave to file an Appeal out of time, they requested to have the same heard before a full bench.
4. It is the Defendants’ deposition that they have resided on the suit land since 2004 and are related by blood with the Plaintiffs; that if the order of eviction were to be enforced and their Appeal, whose process they have already began, is successful, they will be unable to redeem the land thus rendering them destitute and that the hearing of the Application dated 5th December, 2019 should await the hearing and determination of their Application dated 29th January, 2019. The parties filed brief submissions which I have considered.
5. In its Judgment dated 22nd September, 2017, this court ordered for the eviction of the Defendants from the parcel of land known as Mavoko Town Block 3/2729(the suit property).There is no stay of execution of the said Judgment either by this court or the Court of Appeal. That being the case, the Defendants should vacate the suit property as ordered by the court.
6. For those reasons, I allow the Plaintiffs’ Application dated 5th December, 2019 as follows:
a) The Officer Commanding Station (O.C.S) Joska Police Station do enforce the Decree issued by this court on 12th November, 2019 by forcefully evicting the Defendants from parcel of land known as Mavoko Town Block 3/2729.
b) The Defendants to pay the Plaintiffs the costs of the Application.
DATED, SIGNED AND DELIVERED VIRTUALLY IN MACHAKOS THIS 4TH DAY OF JUNE, 2021.
O. A. ANGOTE
JUDGE