[2022] KEELC 34 (KLR)
The court found that the 3rd Defendant/Applicant had already been declared the true and absolute owner of the suit property in a prior judgment. The Plaintiff/Respondent's application for stay of execution had been dismissed, and there was no legal impediment to enforcing the judgment. The Plaintiff/Respondent did...
Source-derived case information.
- Citation
- [2022] KEELC 34 (KLR)
- Parties
- Applicant: Cyrus Gitari Kathuri; Respondent: Lucy Wangari Njogu; Defendant: Peter Leonard Mwangi; Defendant: Consolidated Bank of Kenya Ltd; Defendant: Equity Bank Limted
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 358 of 2010
- 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 Notice of Motion.
- Judges
- LC Komingoi
- Legal Topics
- Eviction Orders, Ownership Disputes, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cyrus Gitari Kathuri
Applicant
Lucy Wangari Njogu
Respondent
Peter Leonard Mwangi
Defendant
Consolidated Bank of Kenya Ltd
Defendant
Equity Bank Limted
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Eviction Orders Post Judgment
Legal Issues
- 1 Whether the 3rd Defendant/Applicant is entitled to eviction orders against the Plaintiff from LR NO 16217/34 at Muthaiga North.
- 2 Whether the Plaintiff should bear the costs of the eviction exercise.
- 3 Whether the OCS Muthaiga Police Station should provide security during execution of the eviction.
Ratio Decidendi
The court found that the 3rd Defendant/Applicant had already been declared the true and absolute owner of the suit property in a prior judgment. The Plaintiff/Respondent's application for stay of execution had been dismissed, and there was no legal impediment to enforcing the judgment. The Plaintiff/Respondent did not reside on the property but used it for subsistence farming and had placed a caretaker there. The court held that the Applicant was entitled to enjoy the fruits of his judgment, and the Respondent's opposition amounted to mere denials without substantive basis. Accordingly, the court allowed the application for eviction, provision of security during execution, and costs of...
Court Disposition
Application allowed; eviction orders granted as prayed in prayers 2, 3, and 4 of the Notice of Motion.
Orders
- Eviction order issued against the Plaintiff from LR NO 16217/34 at Muthaiga North to Geoffrey Kangati t/a Kangethe ENT. Auctioneers.
- OCS Commanding Police Station Muthaiga Police Station to provide security to the Auctioneer during execution of the warrants.
Full Case Text
Judgment text and source record
39 paragraphs
Kathuri v Njogu & 3 others (Environment & Land Case 358 of 2010) [2022] KEELC 34 (KLR) (Environment and Land) (5 May 2022) (Ruling)
Neutral citation: [2022] KEELC 34 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 358 of 2010
LC Komingoi, J
May 5, 2022
Between
Cyrus Gitari Kathuri
Applicant
and
Lucy Wangari Njogu
Respondent
and
Peter Leonard Mwangi
1st Defendant
Consolidated Bank of Kenya Ltd
2nd Defendant
Equity Bank Limted
3rd Defendant
Ruling
1. This is the notice of motion dated 31st March 2022 brought under section 3A of the Civil Procedure Act, order 22 rule 29(1) of the Civil Procedure Rules, 2010 and article 40 of the Constitution of Kenya.
2. It seeks orders;1. Spent.
2. That this honourable court be pleased to issue orders of eviction against the Plaintiff from LR NO 16217/34 at Muthaiga North (hereinafter called “suit property”) to Geoffrey Kangati t/a Kangethe ENT. Auctioneers.
3. That this honourable court be pleased to order OCS Commanding Police Station Muthaiga Police Station to give security to the Auctioneer while executing the warrants.
4. That the Plaintiff be ordered to pay costs of the eviction exercise that may be incurred by the 3rd Defendant/Applicant
3. The grounds are on the face of the Applicant and are set out in paragraphs 1 to 11.
4. The Application is supported by the affidavit of Cyrus Gitari Kathuri, the 3rd Defendant/Applicant sworn on the 31st March 2022.
5. The application is opposed. There is a replying affidavit sworn by Lucy Wangari Njogu, the Plaintiff/Respondent on the 21st April 2022.
6. On the 20th April 2022, the court with the consent of the parties directed that the notice of motion be canvassed by way of written submissions.
7. I have considered the notice of motion and the affidavit in support. I have considered the affidavit in response, the written submissions and the authorities cited. The issue for determination is whether this application is merited.
8. This court in its judgment dated 14th October 2021 declared the 3rd Defendant/Applicant as the true and absolute owner of LR NO 16217/34 situated at Muthaiga North.
9. The Plaintiff’s/Respondent’s application for stay of execution of the said judgment was dismissed on 24th March 2022.
10. It is on record that the Plaintiff/Respondent does not reside on the suit property but does subsistence farming. She has also placed a caretaker on the suit property.
11. It is in the interest of justice that the 3rd Defendant/Applicant ought to be left to enjoy the fruits of his judgment.
12. I find that the Plaintiff’s/Respondent’s replying affidavit is full of mere denials.
13. I find merit in this application and the same is allowed in terms of prayer no 2, 3 and 4 of the Notice of Motion.
It is so ordered.
DATED, SIGNED AND DELIVERED NAIROBI THIS 5TH DAY OF MAY 2022. ……………………….L. KOMINGOIJUDGEIn the presence of:-Ms Njoki for Mr. Okatch for the PlaintiffMr. Peter Mwangi the 1st Defendant in personNo appearance for the 2nd, 3rd and 4th DefendantsSteve - Court AssistantNAIROBI ELC NO.358 of 2010 Page 3