[2005] KEHC 1339 (KLR)
The court found that the plaintiffs had failed to comply with a previous order to give vacant possession of the suit premises to the 2nd defendant. The pending application for stay of execution did not constitute a valid reason for non-compliance, as it had not yet been heard or granted. However, since the...
Source-derived case information.
- Citation
- [2005] KEHC 1339 (KLR)
- Parties
- Plaintiff: Kariuki Mukono; Plaintiff: John Munyiri; Plaintiff: James Waweru; Plaintiff: Kyora Charcoal Dump Self Help Group; Defendant: Nairobi City Council; Defendant: Church Commissioners for Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 388 of 1997
- Procedural Posture
- Civil Suit / Ruling on Application for Eviction and Police Supervision Pending Hearing of Stay Application
- Outcome
- Application for eviction stood over pending hearing and determination of the application for stay of execution.
- Legal Topics
- Eviction Orders, Vacant Possession, Contempt of Court, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kariuki Mukono
Plaintiff
John Munyiri
Plaintiff
James Waweru
Plaintiff
Kyora Charcoal Dump Self Help Group
Plaintiff
Nairobi City Council
Defendant
Church Commissioners for Kenya
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Eviction and Police Supervision Pending Hearing of Stay Application
Legal Issues
- 1 Whether the plaintiffs should be forcibly evicted from the 2nd defendant's parcel of land as per the previous court order.
- 2 Whether the application for stay of execution prevents enforcement of the order for vacant possession.
- 3 Whether an eviction order can be granted when it was not specifically pleaded in the counterclaim.
Ratio Decidendi
The court found that the plaintiffs had failed to comply with a previous order to give vacant possession of the suit premises to the 2nd defendant. The pending application for stay of execution did not constitute a valid reason for non-compliance, as it had not yet been heard or granted. However, since the application for stay was pending, the court deferred making a final order on the eviction application until the stay application was heard. The court emphasized the need to hear the stay application expeditiously and stood over the eviction application pending that determination.
Court Disposition
Application for eviction stood over pending hearing and determination of the application for stay of execution.
Orders
- The application for stay of execution to be heard as soon as a date is available.
- The application for eviction is stood over until the application for stay has been heard.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Suit 388 of 1997
KARIUKI MUKONO………….………………………..1ST PLAINTIFF
JOHN MUNYIRI……………….……………………….2ND PLAINTIFF
JAMES WAWERU……………..…………………….....3RD PLAINTIFF
KYORA CHARCOAL DUMP
SELF HELP GROUP…………..……………………….4TH PLAINTIFF
(All suing on their own behalf and on behalf of 23 others)
VERSUS
NAIROBI CITY COUNCIL………………….……..1ST DEFENDANT
CHURCH COMMISSIONERS FOR KENYA.……2ND DEFENDANT
RULING
The Applicant seeks an order by its application of the 14/8/2003 that:
1. The Plaintiff be forcibly evicted from the 2nd Defendant’s parcel of land known as Kyoga Crescent Maringo, Nairobi.
2. That the officer commanding Station Jogoo Road Police Station do supervise the said eviction and provide the security needed during the eviction exercise.
Mr. Gitau opposed the application as he submits that firstly, the wrong provisions had been relied on for execution of the decree.
In my judgment of the 29/8/2002 l made an order that the Plaintiffs give vacant possession of the Plot to the 2nd Defendant on the 1st day of December 2002. In the supporting affidavit it is deponed that the Plaintiffs and their agents and servants have refused and /or failed to vacate the 2nd Defendant’s parcel of land.
This is not disputed by the Respondent. Mr. Gitau informed the court that an application for stay of execution had been made. That application which has not been heard yet cannot constitute a reason for not complying with the order made. Secondly, he submitted that as no prayer for eviction had been claimed in the counterclaim, it could not be asked for in this application.
What, however was ordered was vacant possession of the suit premises be handed over on the 31/12/2002 some two years ago. The Respondents by having failed to obey this order are in contempt of court. However, no application to commit the Respondent to civil jail has been made.
In order to dispose of this matter, l order that the Application for stay be heard before me as soon as a date is available.
Depending on the outcome of that application l will defer making orders in this application which is stood over until the application for stay has been heard.
DATED and DELIVERED at Nairobi on 4th February 2005
P.J RANSLEY
JUDGE