[2022] KEELC 13592 (KLR)
The court found that although the appellant had already had more than seven months to comply with the decree for vacant possession, and the crop season was nearly over, it was in the interest of justice to grant a final deadline for the appellant to hand over vacant possession. The court did not find sufficient...
Source-derived case information.
- Citation
- [2022] KEELC 13592 (KLR)
- Parties
- Appellant: Jeremiah Mugendi Kiambi; Respondent: Joseph Murori Kabari; Respondent: Francis Munyua
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 3 of 2020
- Procedural Posture
- Environment and Land Appeal / Ruling on Post Judgment Application for Stay of Execution and Leave to Remove Developments
- Outcome
- Application partially allowed; appellant granted time to vacate until 15th November 2022, failing which execution to issue.
- Judges
- CK Nzili
- Legal Topics
- Vacant Possession, Eviction Procedure, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Mugendi Kiambi
Appellant
Joseph Murori Kabari
Respondent
Francis Munyua
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Post Judgment Application for Stay of Execution and Leave to Remove Developments
Legal Issues
- 1 Whether the appellant should be granted additional time to remove his houses and harvest crops from the suit land before handing over vacant possession.
- 2 Whether the application was properly before the court given the preliminary objection on jurisdiction.
Ratio Decidendi
The court found that although the appellant had already had more than seven months to comply with the decree for vacant possession, and the crop season was nearly over, it was in the interest of justice to grant a final deadline for the appellant to hand over vacant possession. The court did not find sufficient grounds to grant the full six months requested but allowed the appellant until 15th November 2022 to vacate, after which execution would issue. The court implicitly exercised its discretion to balance the appellant's need for a reasonable relocation period against the respondents' right to enjoy the fruits of their judgment, noting the absence of evidence of eviction proceedings...
Court Disposition
Application partially allowed; appellant granted time to vacate until 15th November 2022, failing which execution to issue.
Orders
- The applicant shall hand over vacant possession to the respondents on or before 15th November, 2022.
- In default of compliance, execution to issue.
Full Case Text
Judgment text and source record
27 paragraphs
Kiambi v Kabari & another (Environment and Land Appeal 3 of 2020) [2022] KEELC 13592 (KLR) (12 October 2022) (Ruling)
Neutral citation: [2022] KEELC 13592 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment and Land Appeal 3 of 2020
CK Nzili, J
October 12, 2022
Between
Jeremiah Mugendi Kiambi
Appellant
and
Joseph Murori Kabari
1st Respondent
Francis Munyua
2nd Respondent
Ruling
1. By an application dated 12. 5.2022 the appellant seeks for an order that the respondents to allow him to remove his houses and or harvest food crops from L.R NO. Abothuguchi/Kiija/1459 for a period of six months or such other reasonable period as the court may deem fit and just.
2. The application is based on the grounds set out on the foot of the application and a supporting affidavit sworn by Jeremiah Kiambi on the even date, in which he has attached photographs marked JK 2 – JK 6 respectively. In the said exhibits, the applicant has demonstrated his developments on the suit land which he says were acknowledged by the respondents in the course of the hearing.
3. The applicant avers that he is satisfied with the judgment and does not wish to appeal over it hence instead of being evicted, which will make him suffer untold loss and damage, it was only fair that he be given a stay for six months to move out of the suit land in a peaceful manner.
4. The respondents have opposed the application through a preliminary objection that the court lacks jurisdiction to entertain the request which was under the wrong provisions of law.
5. By written submissions filed on 13. 6.2022, the applicant has stated the issue of his occupation of the land was undisputed and since he did not wish to appeal against the judgment, the court should help him minimize his personal loss by allowing him to organize the relocation of his matrimonial home and harvest the crops for the current season.
6. Further, it was submitted that the execution was yet to commence so no loss or harm would be occasioned to the respondents should the orders sought be granted.
7. The applicant further submitted that the application was made in good faith, without undue delay and was not meant to frustrate the respondents in enjoying the fruits of their litigation but to facilitate the grant of vacant possession.
8. It is not in dispute that the court pronounced its judgment on 9. 3.2022. There is no evidence that the respondents have extracted any decree for eviction and served the same upon the applicants. The application was filed two months after the judgment. The reasons given are to enable the applicant to relocate and peacefully hand over vacant possession to the respondents.
9. The court was clear in its judgment on the circumstances leading to the fate by the appellant. Be that as it may the applicant has had more than 7 months to comply with the decree. Judicial notice can also be taken that the crop season envisaged in the application is almost over.
10. Given the foregoing and in the interest of justice the court directs that the applicant hands over vacant possession to the respondents on or before 15th November, 2022, in default execution to issue.Orders accordingly.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT THIS 12TH DAY OF OCTOBER, 2022In presence of:Muchiri for Mukaburu for applicantCcourt Assistant: KananuHON. C.K. NZILIELC JUDGE