[2018] KEELC 1031 (KLR)
The court declined to grant the eviction order because the applicant failed to provide proof that the judgment and/or decree had been served on the defendant as expressly required by the prior judgment. The court emphasized that service of the judgment or decree is a mandatory procedural step before an eviction...
Source-derived case information.
- Citation
- [2018] KEELC 1031 (KLR)
- Parties
- Plaintiff: Lucy Wanjiru Kibusu (Suing as the administrator of the Estate of Joyce Wangari Kibisu); Defendant: Charles Miyenda Chore
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 36 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Eviction Post Judgment
- Outcome
- application dismissed
- Legal Topics
- Eviction Orders, Service of Judgment, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Wanjiru Kibusu (Suing as the administrator of the Estate of Joyce Wangari Kibisu)
Plaintiff
Charles Miyenda Chore
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Eviction Post Judgment
Legal Issues
- 1 Whether the court should grant eviction orders against the defendant without proof of service of the judgment and/or decree as previously directed.
- 2 Whether the applicant complied with the court's prior order requiring service before eviction.
Ratio Decidendi
The court declined to grant the eviction order because the applicant failed to provide proof that the judgment and/or decree had been served on the defendant as expressly required by the prior judgment. The court emphasized that service of the judgment or decree is a mandatory procedural step before an eviction order can be executed. Without evidence of such service, the court could not lawfully authorize the eviction. The application was therefore dismissed, but the applicant was granted liberty to serve the judgment and/or decree personally upon the defendant and thereafter file a fresh application for eviction if necessary. No order as to costs was made.
Court Disposition
application dismissed
Orders
- The application for eviction is dismissed for want of proof of service of the judgment and/or decree upon the defendant.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 36 OF 2016
LUCY WANJIRU KIBUSU
(Suing as the administrator of the Estate of JOYCE WANGARI KIBISU)......PLAINTIFF
VERSUS
CHARLES MIYENDA CHORE.......................................................................DEFENDANT
RULING
(Application for eviction; judgment making specific order for service upon the defendant before an eviction could issue; no proof of service of the judgment; application dismissed).
1. The application before me is that dated 19 September 2018 filed by the plaintiff/decree holder. It is an application brought pursuant to the provisions of Order 22 Rule 29 (1) and 82(1) of the Civil Procedure Rules, and seeks orders to have the Officer Commanding Station, Naishi Police Station, to provide security during the eviction of the judgment debtor from the land Plot No. 239 Nguriga Trading Centre, Njoro.
2. In this suit, the plaintiff sued the defendant for occupying the subject plot. The defendant appointed an advocate who entered appearance and filed defence. However, he and his counsel did not appear at the hearing of the suit and the matter proceeded in their absence. I was persuaded that the plaintiff has proved her case and entered judgment in her favour on 16 November 2017. In my judgment I held that as between the plaintiff and defendant, it is the plaintiff who is entitled to ownership of the subject plot. I declared that the defendant is a trespasser and gave an order that he must vacate within 14 days of service of the judgment and/or decree and if he fails to so vacate, an eviction order to issue.
3. In this application, the applicant has averred that the defendant has failed to vacate the suit plot. That may be so, but in my judgment, I did direct that the defendant be served with the judgment and/or decree before an order of his eviction may be executed. I have not seen any proof of service of the judgment and/or decree upon the defendant. I therefore hesitate to issue the eviction orders sought herein. I instead direct the applicant to first proceed to serve the judgment and/or decree personally upon the defendant, after which the applicant is at liberty to file an application for eviction for consideration.
4. It is solely for the reason that I have no proof of service of the judgment and/or decree upon the defendant as ordered in the judgment, that I dismiss this application. I however make no orders as to costs.
5. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 11th day of October 2018.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU
In presence of : -
Ms. Ogange holding brief for Mr. Kamonjo Kiburi for the applicant.
No appearance on the part of M/s Osero & Co. for the respondent.
Court Assistant: Nelima Janepher.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU