[2023] KEELC 17775 (KLR)
The court found that the only valid judgment on record entitled the plaintiffs to a resurvey of the land and costs, but did not order eviction or reference the District Land Registrar's report. The report was neither part of the judgment nor in compliance with any court order. Therefore, the notice to show cause for...
Source-derived case information.
- Citation
- [2023] KEELC 17775 (KLR)
- Parties
- Plaintiff: Yobensia Kemunto Kemoni; Plaintiff: Margaret Nyaitondi Gwoma; Defendant: Geoffrey Mangera Omwoyo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 105 of 2021
- Procedural Posture
- Environment and Land Case / Ruling on Notice to Show Cause
- Outcome
- notice to show cause dismissed
- Judges
- JM Kamau
- Legal Topics
- Eviction Proceedings, Land Resurvey, Costs Award, Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yobensia Kemunto Kemoni
Plaintiff
Margaret Nyaitondi Gwoma
Plaintiff
Geoffrey Mangera Omwoyo
Defendant
Procedural Posture
Environment and Land Case / Ruling on Notice to Show Cause
Legal Issues
- 1 Whether the judgment debtor should be evicted from 5.5 acres of LR No Matutu Settlement Scheme/215.
- 2 Whether the judgment debtor should pay Kshs 226,178 as costs awarded by the court.
- 3 Whether the District Land Registrar's report was part of or in compliance with the court's judgment.
Ratio Decidendi
The court found that the only valid judgment on record entitled the plaintiffs to a resurvey of the land and costs, but did not order eviction or reference the District Land Registrar's report. The report was neither part of the judgment nor in compliance with any court order. Therefore, the notice to show cause for eviction and payment of costs could not be sustained on the basis of the existing judgment and decree. The application failed as the reliefs sought were not supported by the operative judgment.
Court Disposition
notice to show cause dismissed
Orders
- The Notice to show cause dated December 14, 2022 is dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
Kemoni & another v Omwoyo (Environment & Land Case 105 of 2021) [2023] KEELC 17775 (KLR) (8 June 2023) (Ruling)
Neutral citation: [2023] KEELC 17775 (KLR)
Republic of Kenya
In the Environment and Land Court at Nyamira
Environment & Land Case 105 of 2021
JM Kamau, J
June 8, 2023
Between
Yobensia Kemunto Kemoni
1st Plaintiff
Margaret Nyaitondi Gwoma
2nd Plaintiff
and
Geoffrey Mangera Omwoyo
Defendant
Ruling
1. Before court is the Notice to show cause dated December 14, 2022 why the Judgment Debtor – Geoffrey Omwoyo should not be evicted from a portion of land measuring 5 ½ Acres out of LR No Matutu Settlement Scheme/215 and also why he should not pay the sum of Kshs 226,178/= being the costs awarded by the court. This is pursuant to the Judgment of the Honourable Mr Justice Asike Makhandia as he then was delivered on September 30, 2010 more than 12 years ago. The Judgment Debtor opposed the Notice to show cause through his Replying Affidavit sworn on January 19, 2023 by denying that such Judgment was ever made and that it is the Land Registrar that was mandated to implement the order. He also says that he was not served with the Bill of costs and not even aware when it was taxed. He further says that if ever the Bill of Costs was taxed, the amount awarded should be set off from his damaged trees. The Judgment of the court reads as follows: -I am satisfied that the Plaintiffs have proved their case on a balance of probability and are therefore entitled to prayers (a) and (c) in the Plaint.Prayer (c) is on costs of the suit while prayer (a) is on resurvey of Matutu Settlement Scheme/215 so that land parcel No Matutu Settlement Scheme/214 measures 15. 5 Acres while land parcel No Matutu Settlement Scheme/215 measures 4 Acres and the Decree was drawn accordingly. This is the only Judgment in the file and the District Land Registrar’s Report dated February 29, 2012 is not part of the Judgment nor was it ever in compliance with any court order. The Notice to show cause therefore fails.
RULING DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 8TH DAY OF JUNE 2023MUGO KAMAUJUDGEIn the Presence of:Court Assistant: SibotaPlaintiffs: N/ADefendant: N/A