[2024] KEELC 1114 (KLR)
The court found that the decree for vacant possession and eviction had not been appealed or set aside, and the respondent had not complied with it. The respondent failed to provide any legal justification for remaining on the land. However, the court noted that statutory notice under Sections 152 A-F of the Land Act...
Source-derived case information.
- Citation
- [2024] KEELC 1114 (KLR)
- Parties
- Appellant: Julius Kathurima Kithamba; Respondent: Julius Mwongera
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 139 of 2019
- Procedural Posture
- Environment and Land Appeal / Ruling on Post Judgment Enforcement Application
- Outcome
- Application allowed with conditions.
- Judges
- CK Nzili
- Legal Topics
- Eviction Proceedings, Decree Enforcement, Vacant Possession, Statutory Notice Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Kathurima Kithamba
Appellant
Julius Mwongera
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Post Judgment Enforcement Application
Legal Issues
- 1 Whether the respondent should be evicted from the suit land pursuant to the decree issued on 7.12.2023.
- 2 Whether the applicant must serve statutory notice under Sections 152 A-F of the Land Act before enforcement.
- 3 Whether the OCS Ruiri Police Station should provide security for the eviction.
Ratio Decidendi
The court found that the decree for vacant possession and eviction had not been appealed or set aside, and the respondent had not complied with it. The respondent failed to provide any legal justification for remaining on the land. However, the court noted that statutory notice under Sections 152 A-F of the Land Act must be served before eviction can lawfully proceed. The court therefore ordered the applicant to serve the requisite notice, and upon its expiry, authorized the OCS Ruiri Police Station to assist in evicting the respondent if he does not vacate voluntarily. Costs of the eviction and application are to be borne by the respondent if he fails to comply voluntarily.
Court Disposition
Application allowed with conditions.
Orders
- Applicant to serve statutory notice under Sections 152 A-F of the Land Act on the respondent.
- Upon expiry of the notice, OCS Ruiri Police Station to evict the respondent from the suit land if he does not vacate voluntarily.
Full Case Text
Judgment text and source record
22 paragraphs
Kithamba v Mwongera (Environment and Land Appeal 139 of 2019) [2024] KEELC 1114 (KLR) (28 February 2024) (Ruling)
Neutral citation: [2024] KEELC 1114 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment and Land Appeal 139 of 2019
CK Nzili, J
February 28, 2024
Between
Julius Kathurima Kithamba
Appellant
and
Julius Mwongera
Respondent
Ruling
1. The court is asked to order the OCS Ruiri Police Station to provide security for the implementation of the decree issued on 7. 12. 2023, following a judgment delivered on 28. 7.2021. The reasons are contained on the face of the application and an affidavit sworn on 1. 9.2023 by Julius Kathurima Kithamba. Briefly, the applicant states the judgment debtor has declined to vacate the land despite intervention by the local area administration, hence depriving him of his rights.
2. The application is opposed by a replying affidavit sworn on 3. 11. 2023 by Julius Mwongera M’Inoti. He avers the applicant is his uncle, who initially exchanged the suit land with his family land’s share L.R No. Nyaki/Mulathankari/494 and settled therein, but changed his mind and filed the suit.
3. Similarly, the respondent avers his sisters filed Meru H.C succession case No. 22 of 2000 and succeeded in having a share of 1/3 of L.R No. Nyaki/Mulathankari/494, to which the applicant is occupying, yet he now wants to evict him from the suit land without vacating the said share. He says survey works for L.R No. 494 were ongoing. He termed the application malicious.
4. The judgment and or decree delivered on 28. 7.2021 by this court has not been appealed against or set aside. The respondent has been aware of the decree or order but has not complied with it. There is no evidence that the respondent was served with the statutory notice under Sections 152 A-F of the Land Act and has refused to comply. Nevertheless, the respondent has shown no justification why he has not handed over vacant possession.
5. Consequently, I order that the applicant serves the requisite notice and, upon its expiry, the O.C.S Ruiri to evict the respondent from the suit land in accordance with the law.
6. Costs to the eviction and this application, if he does not voluntarily vacate the land, shall be met by the respondent.
Orders accordingly.
DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 28TH DAY OF FEBRUARY 2024In presence ofC.A KananuGikunda Anampiu for applicantMiss Kerubo for respondentHON. CK NZILIJUDGE