[2019] KEELC 1339 (KLR)
The Court found that the Plaintiff/Applicant is the legal owner of the suit land and had obtained judgment and orders for vacant possession, which the Defendant/Respondent had failed to comply with. The Defendant's failure to respond to the application or appear in Court left the application unopposed. The Court...
Source-derived case information.
- Citation
- [2019] KEELC 1339 (KLR)
- Parties
- Plaintiff: Margaret Njeri Gathu; Defendant: Anthony Githaiga Kabaru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Muranga
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 448 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Eviction Application Post Judgment
- Outcome
- Application allowed. Eviction orders granted as prayed in prayers 2, 3, and 4 of the motion. No order as to costs.
- Judges
- BC Koech
- Legal Topics
- Eviction Orders, Execution of Judgment, Possession of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Njeri Gathu
Plaintiff
Anthony Githaiga Kabaru
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Eviction Application Post Judgment
Legal Issues
- 1 Whether the Plaintiff/Applicant is entitled to eviction orders against the Defendant/Respondent from land parcel MAKUYU/MAKUYU BLOCK II/1280.
- 2 Whether the Court should enforce its previous judgment and orders for vacant possession by issuing eviction orders.
- 3 Whether the Defendant/Respondent's failure to comply with the Court's orders justifies the grant of the eviction orders sought.
Ratio Decidendi
The Court found that the Plaintiff/Applicant is the legal owner of the suit land and had obtained judgment and orders for vacant possession, which the Defendant/Respondent had failed to comply with. The Defendant's failure to respond to the application or appear in Court left the application unopposed. The Court held that it is within its mandate to enforce its orders and ensure the decree-holder enjoys the fruits of judgment. The period for voluntary compliance had lapsed, and the Defendant's continued occupation was unlawful. The Court relied on Order 22 Rule 29 of the Civil Procedure Rules to grant the eviction order, authorize execution by auctioneers, and provide for police...
Court Disposition
Application allowed. Eviction orders granted as prayed in prayers 2, 3, and 4 of the motion. No order as to costs.
Orders
- Eviction order issued against Anthony Githaiga Kabaru from land parcel MAKUYU/MAKUYU BLOCK II/1280 forthwith in execution of Court order dated 13/12/2018.
- HIPPO Auctioneers to execute the eviction order.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT MURANGA
ELC NO.448 OF 2017
MARGARET NJERI GATHU - PLAINTIFF /APPLICANT
VS
ANTHONY GITHAIGA KABARU - DEFENDANT /RESPONDENT
RULING
1. This is a ruling in respect to the Notice of Motion application dated 21/2/2019 filed under certificate of urgency by the Plaintiff / Applicant seeking the following orders;
a. Spent.
b. That an eviction order be and is hereby issued against Anthony Githaiga Kabaru the Defendant / Respondent herein from land parcel number MAKUYU/MAKUYU BLOCK II/1280 forthwith in execution of Court order dated 13/12/2018.
c. That HIPPO Auctioneers to execute the eviction order.
d. That the Officer commanding or Administration Police Commandant Makuyu Police station to supervise and offer security during the eviction exercise.
e. That costs of this application be provided for.
2. The application was premised on the following grounds;
a. That the judgment in this case was passed on the 31/5/2018 by this Honourable Court.
b. That the Defendant / Respondent has adamantly refused to remove herself voluntarily from the said land parcel No. MAKUYU/MAKUYU/BLOCK II /1280.
c. That it’s difficult for the Plaintiff/ Applicant to enjoy the fruits of judgment.
d. That for interest of justice this Honourable Court ought to grant the orders sought.
e. That the Honourable Court has unlimited powers to grant the orders sought herein.
3. The Applicant in her supporting affidavit asserts that she is the legal owner of land parcel number MAKUYU/MAKUYU/BLOCK II /1280 which the Defendant is in illegal occupation of and the Applicant has since obtained a judgment and orders on 13/12/2018 in her favour ordering the Defendant to vacate the said land but the Defendant has adamantly defied the Court orders and refused to vacate. That she intends to develop the suit land for her own use which is impossible to do while the Defendant remains in illegal occupation of the same. The Applicant seeks for eviction orders to issue against the Respondent.
4. The Respondent despite being duly served as per the return of service on record dated 06/03/2019 failed to file any response to it neither did he heed to the hearing notice served upon him as he did he attend Court when the same came up for hearing. The application is thus unopposed.
5. Counsel for the Applicant submitted that the Applicant seeks for eviction orders to be executed by the auctioneer under the supervision of the police for the grounds stated on the face of the application.
6. Essentially the Applicant seeks execution of the orders of this Honourable Court delivered on 31/5/2018 and orders subsequently issued on 13/12/2018. The order of the Court precisely directed the Respondent to vacate the suit land within sixty days of the judgment and in default eviction orders to issue in accordance to the law. The period graciously allowed to the Respondents by the Court to deliver vacant possession to the Applicant of her land has since lapsed. The Applicant is entitled to enjoy the fruits of her judgments.
7. The Respondent has been accused of defying Court orders and has failed to come forward to defend himself. That conduct must not be entertained.
8. The provisions of Order 22 Rule 29 of the Civil procedure Rules provide for execution of a decree of immovable property and delivery of possession.
9. The Court is of the view that it is within its mandate to make further orders to serve the limited purposes of enforcing its judgment. The Court cannot fold its hands as by doing so will cause hardship to the decree holder who should enjoy the fruits of his judgement.
10. The upshot is that the application is allowed in terms of prayers 2, 3 & 4.
11. I make no orders as to costs.
12. It is so ordered.
DELIVERED, DATED AND SIGNED AT MURANG’A THIS 17TH DAY OF OCTOBER 2019.
J G KEMEI
JUDGE
Delivered in open Court in the presence of;
Mwaniki HB for Bwonwonga for the Plaintiff/Applicant
Defendant/Respondent - Absent
Irene and Kuiyaki, Court Assistants