[2025] KEELC 3081 (KLR)
The court found that the applicants were declared owners of the suit property by a prior decree and that the respondent's application for stay of execution was dismissed by the Court of Appeal, which found no arguable grounds in the appeal. The respondent's continued occupation and collection of rent was in defiance...
Source-derived case information.
- Citation
- [2025] KEELC 3081 (KLR)
- Parties
- Applicant: Stephen Kivandi Kamula; Applicant: Josephine Mutindi Kiluva; Applicant: Bella Rose Lavi; Respondent: Boniface Kioko Mwololo; Respondent: Sidian Bank Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 24 of 2018
- Procedural Posture
- Notice of Motion / Ruling on Application for Eviction Orders Post Judgment
- Outcome
- Application allowed; eviction orders granted as prayed in prayers 2, 3, and 4 of the motion.
- Judges
- EO Obaga
- Legal Topics
- Eviction Orders, Execution of Decree, Transfer of Land, Possession of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Kivandi Kamula
Applicant
Josephine Mutindi Kiluva
Applicant
Bella Rose Lavi
Applicant
Boniface Kioko Mwololo
Respondent
Sidian Bank Limited
Respondent
Procedural Posture
Notice of Motion / Ruling on Application for Eviction Orders Post Judgment
Legal Issues
- 1 Whether the applicants are entitled to eviction orders against the 1st respondent from LR. No. Makueni/Emali Town 234.
- 2 Whether the pending appeal and alleged unpaid balance of Kshs.300,000/= preclude the grant of eviction orders.
- 3 Whether the respondent's continued occupation and collection of rent is lawful after dismissal of stay application.
Ratio Decidendi
The court found that the applicants were declared owners of the suit property by a prior decree and that the respondent's application for stay of execution was dismissed by the Court of Appeal, which found no arguable grounds in the appeal. The respondent's continued occupation and collection of rent was in defiance of court orders, and there was no legal basis for him to remain on the property. The court held that the pending appeal did not operate as a stay, and the offsetting of Kshs.300,000/= against taxed costs was not opposed by the respondent. Therefore, the applicants were entitled to eviction orders to enforce the decree and obtain possession of the property.
Court Disposition
Application allowed; eviction orders granted as prayed in prayers 2, 3, and 4 of the motion.
Orders
- An order of eviction is issued against the 1st respondent and his agents, assigns, heirs and/or servants to immediately vacate Land Registration Number Makueni/Emali Town 234.
- The eviction shall be conducted by the Court Bailiff or an Auctioneer to be appointed by the applicants.
Full Case Text
Judgment text and source record
30 paragraphs
Kamula & 2 others v Mwololo & another (Environment & Land Case 24 of 2018) [2025] KEELC 3081 (KLR) (3 April 2025) (Ruling)
Neutral citation: [2025] KEELC 3081 (KLR)
Republic of Kenya
In the Environment and Land Court at Makueni
Environment & Land Case 24 of 2018
EO Obaga, J
April 3, 2025
Between
Stephen Kivandi Kamula
1st Applicant
Josephine Mutindi Kiluva
2nd Applicant
Bella Rose Lavi
3rd Applicant
and
Boniface Kioko Mwololo
1st Respondent
Sidian Bank Limited
2nd Respondent
Ruling
1. The Decree holder/Applicants filed a Notice of Motion dated 5th August, 2024 in which they sought the following orders:1. Spent2. That an order of eviction be issued against the 1st Respondent by himself or his agents, assigns, heirs and/or servants to immediately vacate Land Registration Number Makueni/Emali Town 234 pursuant to the Decree of Court dated 12th May, 2022. 3.That the eviction of the 1st Respondent by himself or his agents, assigns, heirs and/or servants to immediately from Land Registration number Makeuni/Emali Town 234 be conducted either by the Court Bailif or an Auctioneer to be appointed by the Applicant.4. That the Officer commanding Emali Police Station be authorized to enforce compliance of this eviction order by providing security to the Court Bailif/Auctioneer.
2. The Applicants state that this court decreed that LR. No. Makueni/Emali town 234 (suit property) belonged to them. On 22nd May, 2024 the court in Judicial Review application No. E005 of 2023 directed the Land Registrar to register the suit property in the name of the Applicants. The 1st Judgment Debtor/Respondent executed transfer forms to facilitate the registration of the suit property in the Applicants’ names but that the Respondent has refused to vacate the suit property from which he continues to collect rent.
3. The Applicants further state that the Kshs.300,000/= which was due to the Respondent should be offset from the taxed costs and that there is no basis for the Respondent to continue staying on the suit property when there are no orders staying the execution of the decree. They contend that the Respondent had ignored previous orders of the court directing that he deposits the rental income in court and that therefore it is only the eviction orders which are suitable in the circumstances.
4. The Respondent opposed the Applicants’ application based on a replying affidavit sworn on 7th October, 2024. The Respondent contends that the Applicants’ application is premature in that he has already filed an appeal against the judgment of the court which appeal is yet to be determined. The Respondent further contend that the Kshs.300,000/= which the Applicants have not paid and the averment that the amount will be offset from the taxed costs is an afterthought as his appeal is yet to be determined.
5. The Respondent states that the suit property is still registered in his name and that he is in possession and any eviction during the pendency of his appeal is premature. He states further that he is willing to give vacant possession once his appeal is determined in favour of the Applicants.
6. In a supplementary affidavit sworn on 29th October, 2024, the Applicants state that the Respondent filed an application for stay of execution before the Court of Appeal which application was dismissed with costs after the court found that the Appeal had no arguable grounds.
7. The Applicants filed submissions dated 11th November, 2024. The Respondent filed submissions dated 30th January, 2025. I have considered the Applicants’ application, the opposition to the same as well as the submissions by the parties and the authorities cited. The only issue for determination is whether eviction orders should issue.
8. There is no contention that it is the Respondent who sold the suit property to the Applicants. The transfer could not go through as the Respondent had charged the suit property to Sidian Bank Limited. The issue of the charge was not disclosed to the Applicants. The balance of Kshs.300,000/= was to be payable to the Respondent. The Applicants have given their indication that the amount will be offset from the taxed costs which the Respondent is not opposing.
9. The Respondent is still collecting rent from the suit property despite orders having been granted for him to deposit, the same in court. The Respondent’s application for stay of execution was dismissed by the Court of Appeal which observed that the Respondent had not demonstrated any arguable ground in his appeal. This being the case, I do not see why the Respondent should continue being on the suit property. I therefore find that the Applicants’ application has merits. I allow the same in terms of prayer 2, 3, 4 and 5. It is so ordered.
………………………………HON. E. O. OBAGAJUDGERULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 3RD DAY OF APRIL, 2025. In the Presence of:Mr. Mapesa for the Applicant.Court assistant – Steve Musyoki