[2018] KEELC 1572 (KLR)
The court declined to grant the eviction order because the applicant failed to provide evidence that the judgment and/or decree had been served on the respondent as previously directed. The court emphasized that compliance with both its own order (requiring service and a 30-day period for the respondent to vacate)...
Source-derived case information.
- Citation
- [2018] KEELC 1572 (KLR)
- Parties
- Plaintiff: Joseph Nyakundi Orina; Defendant: Joseph Ambuka
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 235 of 2017
- Procedural Posture
- Eviction Application / Ruling on Post Judgment Eviction Application
- Outcome
- application dismissed with liberty to file afresh upon service of judgment/decree
- Legal Topics
- Eviction Orders, Service of Judgment, Execution of Decree, Default Judgment Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Nyakundi Orina
Plaintiff
Joseph Ambuka
Defendant
Procedural Posture
Eviction Application / Ruling on Post Judgment Eviction Application
Legal Issues
- 1 Whether the applicant is entitled to an eviction order against the respondent without proof of service of the judgment and/or decree as previously ordered.
- 2 Whether execution can proceed in the absence of compliance with Order 22 Rule 6 regarding notice to the defendant after default judgment.
Ratio Decidendi
The court declined to grant the eviction order because the applicant failed to provide evidence that the judgment and/or decree had been served on the respondent as previously directed. The court emphasized that compliance with both its own order (requiring service and a 30-day period for the respondent to vacate) and the statutory notice under Order 22 Rule 6 is mandatory before execution can proceed. In the absence of an affidavit of service or proof that the requisite period had lapsed after service, the court found it had no basis to issue the eviction order. The application was dismissed, but the applicant was granted liberty to file a fresh application upon proper service of the...
Court Disposition
application dismissed with liberty to file afresh upon service of judgment/decree
Orders
- The application for eviction is dismissed.
- The applicant is at liberty to file a fresh application upon service of the judgment and/or decree as ordered.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 235 OF 2017
JOSEPH NYAKUNDI ORINA...................................PLAINTIFF
VERSUS
JOSEPH AMBUKA.............................................DEFENDANT
RULING
(Application for eviction; respondent not entering appearance; applicant succeeding in his suit for vacant possession; applicant ordered to serve a 30 days notice to the respondent before eviction; no proof of service of the 30 days notice; application dismissed but with liberty to file a fresh one upon service of the judgment and/or decree as ordered).
1. The application before me is that dated 11 July 2018 filed by the plaintiff. It is an application seeking orders to have an eviction order issued against the defendant and the Officer Commanding Bondeni Police Station (OCS, Bondeni) to provide security during the eviction exercise.
2. In this suit, the plaintiff/applicant sued the defendant/respondent for recovery of possession of land described as Nakuru Municipality Block 13L (Bondeni). The respondent did not file any appearance nor defence and the matter proceeded ex-parte. I gave judgment in favour of the applicant on 16 May 2018. Inter alia, I issued a declaration that it is the applicant who is the rightful proprietor of the suit land, and gave the respondent 30 days to vacate the suit land and in default an order of eviction be issued and be executed.
3. In this application, the applicant has deposed that the respondent has refused to vacate the suit premises despite the judgment against him.
4. The application is not opposed. However, I have absolutely no evidence before me that the respondent was served with the judgment and/or decree as I had directed in the judgment, and no evidence that 30 days have lapsed from the time that the judgment/decree was served, to the time that this application was filed. There is no affidavit of service of the judgment and/or decree upon the respondent annexed to the application, and my perusal of the file has revealed none. I regret my inability to issue an order of eviction before I have seen proof of service of the judgment and/or decree as stated in the judgment.
5. Apart from my direct order requiring service of the judgment or decree within 30 days, the applicant cannot execute without first complying with the provisions of Order 22 Rule 6 which requires that where judgment in default has been entered, no execution should issue until at least a 10 days notice is served upon the defendant.
6. It is for the reason that I have no proof of service of the judgment, and no evidence that 30 days have lapsed from the time of service of the said judgment and/or decree, that I have little choice but to dismiss this application. The applicant is of course at liberty to file another application once the judgment and/or decree is served in accordance with the judgment.
7. I make no orders as to costs.
8. Orders accordingly.
Dated, signed and delivered in open court at Nakuru this 27th day of September 2018.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU
In presence of : -
Ms. Chelangat holding brief for Mr. Matiri for the plaintiff/applicant.
Defendant/respondent- Absent.
Court Assistant: Nelima
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU