[2023] KEELC 466 (KLR)
The court found that the application for enforcement was merited because the judgment granting a permanent injunction had already been delivered, and no stay of execution had been granted by any appellate court at the time of the application. The defendants' subsequent application for stay at the Court of Appeal did...
Source-derived case information.
- Citation
- [2023] KEELC 466 (KLR)
- Parties
- Plaintiff: Joseph Ndichu Kiniu; Defendant: Ann Wairimu Ndungu and Stanley Ndungu Murigi Both t/a Annrose Nursery and Primary School; Defendant: Mbakasi Ranching Company Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Case Civil Suit 179 of 2009
- Procedural Posture
- Civil Suit / Ruling on Post Judgment Enforcement Application
- Outcome
- Plaintiff's application for enforcement allowed; 1st defendants condemned to pay costs.
- Judges
- LN Mbugua
- Legal Topics
- Permanent Injunction, Enforcement of Judgment, Stay of Execution, Land Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ndichu Kiniu
Plaintiff
Ann Wairimu Ndungu and Stanley Ndungu Murigi Both t/a Annrose Nursery and Primary School
Defendant
Mbakasi Ranching Company Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Post Judgment Enforcement Application
Legal Issues
- 1 Whether the court should grant enforcement orders to restrain the defendants from trespassing or dealing with the suit properties despite a pending appeal.
- 2 Whether the defendants' application for stay of judgment at the Court of Appeal justifies delaying enforcement of the permanent injunction.
Ratio Decidendi
The court found that the application for enforcement was merited because the judgment granting a permanent injunction had already been delivered, and no stay of execution had been granted by any appellate court at the time of the application. The defendants' subsequent application for stay at the Court of Appeal did not automatically suspend the enforcement of the judgment, especially since it was filed only after the plaintiff sought enforcement and was not certified as urgent. The court emphasized that it was functus officio regarding the merits of the land ownership dispute and that the balance of justice required upholding the judgment and restraining the defendants from further...
Court Disposition
Plaintiff's application for enforcement allowed; 1st defendants condemned to pay costs.
Orders
- The officer commanding Ruai Police Station is directed to facilitate enforcement of the judgment to restrain the defendants, their agents or servants from trespassing, alienating, or in any way dealing with LR No Block 105 (Embakasi Ranching)/1927 and Nairobi Block 105 (Embakasi Ranching)/1928 permanently.
- The 1st defendants are condemned to pay costs of the application.
Full Case Text
Judgment text and source record
23 paragraphs
Kiniu v Ann Wairimu Ndungu and Stanley Ndungu Murigi Both t/a Annrose Nursery and Primary School & another (Environment and Land Case Civil Suit 179 of 2009) [2023] KEELC 466 (KLR) (2 February 2023) (Ruling)
Neutral citation: [2023] KEELC 466 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment and Land Case Civil Suit 179 of 2009
LN Mbugua, J
February 2, 2023
Between
Joseph Ndichu Kiniu
Plaintiff
and
Ann Wairimu Ndungu and Stanley Ndungu Murigi Both t/a Annrose Nursery and Primary School
1st Defendant
Mbakasi Ranching Company Ltd
2nd Defendant
Ruling
1. Judgement was entered herein in favour of the plaintiff on June 23, 2022. The plaintiff then filed the Notice of motion application dated August 1, 2022 seeking orders that the officer commanding Ruai Police station be directed to facilitate the enforcement of the said judgment so as to restrain the defendants/their agents or servants from trespassing, alienating or in any way dealing with the properties known as LR No Block 105 (Embakasi Ranching) /1927 and Nairobi Block 105 (Embakasi Ranching) /1928 permanently.
2. The application is based on grounds on its face and on the plaintiff’s supporting affidavit sworn on August 1, 2022. He deposes that the 1st defendants have been in violation of the permanent injunction order given by the court in the judgement delivered on June 23, 2022 as they have not vacated the suit properties. He points out that the 1st defendants have not stayed or challenged the said judgement. He annexed a photograph of structures on the suit land to buttress his argument.
3. In opposition to the aforementioned application, the 1st defendants filed grounds of opposition and a replying affidavit contending that they have proffered an appeal against the judgement herein, hence they should be afforded time to ventilate the appeal, arguing that they have always been in possession of the suit properties. The 1st defendants further contend that they have filed an application for stay of the judgement in the court of appeal which application has not been objected by the plaintiff; adding that it is draconian to seek the 1st defendants’ eviction when the actual location of the parties’ plots has not been pointed out/identified by the 2nd defendant’s surveyor and considering that there is a running educational institution on the suit properties.
4. In response to the 1st defendants’ replying affidavit, the plaintiff filed a further affidavit sworn on November 14, 2022 contending that the 1st defendants only filed an application dated September 26, 2022 seeking stay of the judgment herein at the court of appeal in reaction to the instant application. He points out that the application was not certified urgent as the same is a time buying tactic and an abuse of the appellate process.
5. I have considered all the arguments raised herein including the submissions of the parties. Courts of law exist to administer justice and in so doing they must of necessity balance between competing rights and interests of different parties but within the confines of law, to ensure the ends of justice are met- SeeEquity Bank Limited v West Link MBO LimitedCivil Application No 78 of 2011. In the case at hand Judgment was delivered way back in June 2022. By the time the current application was filed in August 2022, there was no mention of any appeal against the said Judgment. In any event, the issue of stay is not a subject of determination before this court. The court is also functus officio in relation to the land ownership dispute as the court has duly pronounced itself.
6. I therefore find that the application dated August 1, 2022 is merited, the same is allowed and the 1st defendants are condemned to pay costs of the said application.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2NDDAY OF FEBRUARY, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Nganga for plaintiffMabeya holding brief for Mr. Omari and M/s Anita Masaki for 1st defendantM/s Maina holding brief for Mr. Odiyo for the GarnisheeCourt assistant: Eddel