[2014] KEHC 7279 (KLR)
The court found that the defendant was properly served with the application for eviction and had ample notice but chose not to participate in the proceedings or comply with prior court orders. The defendant's continued occupation of the property was deemed a deliberate attempt to frustrate the court-ordered sale and...
Source-derived case information.
- Citation
- [2014] KEHC 7279 (KLR)
- Parties
- Plaintiff: Leonard Brandenberg; Defendant: Ann Atemo Makoba
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 419 of 2010
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion for Eviction and Related Orders
- Outcome
- Application allowed in part; eviction order granted; police to oversee execution; no order on vehicles; defendant's share of proceeds to be deposited in court; costs in the cause.
- Judges
- JV Juma
- Legal Topics
- Matrimonial Property Division, Eviction Orders, Enforcement of Court Orders, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leonard Brandenberg
Plaintiff
Ann Atemo Makoba
Defendant
Procedural Posture
Civil Suit / Ruling on Notice of Motion for Eviction and Related Orders
Legal Issues
- 1 Whether the defendant should be evicted from LR Number MN/1/1656 to facilitate the court-ordered sale of matrimonial property.
- 2 Whether the defendant was properly served with notice of the application for eviction.
- 3 Whether the defendant's conduct amounts to a deliberate frustration of court orders.
Ratio Decidendi
The court found that the defendant was properly served with the application for eviction and had ample notice but chose not to participate in the proceedings or comply with prior court orders. The defendant's continued occupation of the property was deemed a deliberate attempt to frustrate the court-ordered sale and division of matrimonial property. The court emphasized that orders must be obeyed and enforced, and that the buyer is entitled to vacant possession. Accordingly, the court granted the eviction order and directed police assistance for its execution, while also ordering that the defendant's share of the sale proceeds be deposited in court for her collection. No order was made...
Court Disposition
Application allowed in part; eviction order granted; police to oversee execution; no order on vehicles; defendant's share of proceeds to be deposited in court; costs in the cause.
Orders
- Eviction order issued against the defendant in respect of LR Number MN/1/1656, Nyali Links Road, to be executed by Sure Auctioneers of Mombasa.
- OCS Nyali police station to oversee the eviction and provide security during execution of the order.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 419 OF 2010 (OS)
IN THE MATTER OF SECTION 17 OF THE MARRIED WOMENS PROPERTY ACT (1882)
LEONARD BRANDENBERG……..………………………...PLAINTIFF
VERSUS
ANN ATEMO MAKOBA………..……………….…….…..DEFENDANT
RULING
Before court is the Notice of Motion dated 5th December, 2013 seeking the following orders:
“2. THAT an eviction order in respect of land
reference number MN/1/1656 House in Nyali Links Road do issue as against the respondent and which eviction/order is to be implemented and or carried out by Sure Auctioneers of Mombasa.
3. THAT the OCS Nyali police station do
oversee the eviction and execution of the order by providing security.
4. THAT the respondent do account for motor
vehicle registration numbers KAU 494K Rav 4, Toyota KAP 425V, Toyota Touring and KBA 053C Harrier Toyota in her possession forming part of the matrimonial property and which she has refused to release or give accounts.”
The parties to this suit are a couple who are divorced. The plaintiff filed this suit seeking division of their matrimonial property. On 29th June, 2012 Hon. Muriithi Judge made orders directing that the matrimonial property be sold and the proceeds shared equally between the two. One of the properties subject to this sale order was LR Number MN/1/1656 a house in Links Road in Nyali currently occupied by the defendant. Throughout the process of sale the defendant has been uncooperative necessitating court and police intervention to have the property accessed for valuation and viewing. The defendant even declined to execute the sale documents, which were eventually executed by the Deputy Registrar upon orders of the High Court. At every stage of the process the defendant has been properly served with notice but has adamantly refused to engage counsel to file any responses or to appear in court. I have personally examined the process-server on two occasions. He confirms that the defendant is well known to him as he has gone to the suit premises regularly to serve her with documents pertaining to this case. I am satisfied that the defendant was properly served with notice of this particular application for eviction as per the affidavit of service dated 23rd December, 2013 and filed in court on 21st January, 2014.
Once again the defendant has declined to make any response to the application. It is clear to me that the defendant has made a conscious decision not to participate in the court process. It is further clear that she hopes to frustrate the court-ordered sale of the property by refusing to give up vacant possession of the property. The petitioner is an elderly ailing man who is in Switzerland for treatment and requires the funds to facilitate this treatment. The defendant has not taken any steps to appeal against the sale order or to challenge the same in court. The court will not allow the respondent to frustrate court orders in this manner. Court orders must be obeyed and are enforceable. I am satisfied that the defendant had notice of these proceedings and more particularly that she was properly served and has had over one month’s notice of present application. The decision not to take any action is her own personal choice. The application is unopposed. The buyer must be given vacant possession of the property. I therefore grant prayers (2) and (3) of the Notice of Motion. Prayer (4) was not argued before me and I will make no orders on the same. I further direct that the defendant’s half-share of the purchase price be deposited in court awaiting her collection of the same. Costs in the cause.
Dated and delivered in Mombasa this 29th day of January, 2014.
M. ODERO
JUDGE
Read in open court
No appearance by counsel