[2012] KEHC 5847 (KLR)
The court found that the decree issued on 22/11/2011 in favor of the applicants had not been challenged, reviewed, or appealed against and thus remained valid and enforceable. The respondent had persistently failed to comply with the court's orders, continued to occupy the property unlawfully, and even attempted to...
Source-derived case information.
- Citation
- [2012] KEHC 5847 (KLR)
- Parties
- Plaintiff: Dr. Mathew Kiriago Akama; Plaintiff: Meshack Omari Manoti; Defendant: Mathew Kangwana
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 305 of 2010
- Procedural Posture
- Notice of Motion / Ruling on Enforcement Application
- Outcome
- Application allowed with costs to the applicants.
- Judges
- REA Ougo
- Legal Topics
- Enforcement of Decree, Possession of Land, Demolition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Mathew Kiriago Akama
Plaintiff
Meshack Omari Manoti
Plaintiff
Mathew Kangwana
Defendant
Procedural Posture
Notice of Motion / Ruling on Enforcement Application
Legal Issues
- 1 Whether the OCS Lang’ata Police Station should be ordered to enforce and supervise compliance with the court's decree of 22/11/2011.
- 2 Whether the applicants are entitled to possession of L.R No. 209/13393 and removal of the defendant's structures.
- 3 Whether costs should be awarded to the applicants.
Ratio Decidendi
The court found that the decree issued on 22/11/2011 in favor of the applicants had not been challenged, reviewed, or appealed against and thus remained valid and enforceable. The respondent had persistently failed to comply with the court's orders, continued to occupy the property unlawfully, and even attempted to erect additional structures. Given the respondent's non-compliance and absence from proceedings despite proper service, the court held that the applicants were entitled to enforcement of the decree, including police assistance for execution, removal of the respondent's structures, and restoration of possession. The court granted the prayers sought in the application, with costs...
Court Disposition
Application allowed with costs to the applicants.
Orders
- OCS Lang’ata Police Station to enforce and ensure compliance with the decree and orders of 22/11/2011.
- OCS Lang’ata Police Station to supervise execution of the decree and removal or demolition of buildings and structures on L.R No. 209/13393 Grant No. I.R. 90905.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
Environmental & Land Case 305 of 2010
DR. MATHEW KIRIAGO AKAMA…….....…………………………..1ST PLAINTIFF
MESHACK OMARI MANOTI…………..……………………………2ND PLAINTIFF
VERSUS
MATHEW KANGWANA………………………………………………..DEFENDANT
RULING
1. The Plaintiffs/Applicants have filed a Notice of Motion application dated 6/6/2012 seeking orders that the OCS Lang’ata Police station be ordered to enforce and ensure compliance of the decree and orders given by this court on 22/11/2011. That OCS Lang’ata Police station be ordered to supervise the execution of the decree given by the court on 22/11/2011 and the removal or demolition of the buildings and structures erected on the parcel of land known as L.R No. 209/13393 Grant No. I.R. 90905, hereinafter referred to as suit property. That OCS Lang’ata Police station be ordered to put the Applicants in possession of the suit property and cost of the application.
2. The application is premised on the grounds that, and supported by an affidavit sworn by the 1st Applicant that by a judgment of the court delivered on 22/11/2011, the court ordered and declared that the Applicants the bonafideproprietors and entitled to the possession of the suit property. That the court further ordered the Respondent herein to remove the buildings and structures erected thereon at his costs within 60 days of service of the decree upon him, and in default thereof, the Applicants be liberty to remove the same at the Respondent’s costs. That the court further ordered that the Respondent be permanently be restrained from remaining on or continuing in occupation of the suit property. That the decree was extracted and served upon the Respondent on 10/1/2012, and that despite service the Respondent has failed to remove the building and structures and remains on and continues to be in occupation. That the sometimes in April and May of 2012 the Applicants attempted to move into the suit property but that the Respondent resisted and obstructed their entry. That on 31/5/2012 the Applicants went to the suit property and confirmed that the Respondent has dug foundation channels with the intention of adding more structures. That the Applicants are being prevented from enjoying the fruits of their judgment and that the Respondent is acting in defiance and flagrant breach of the decree and orders given by the court. The Respondent did not respond to the application, neither did he attend the hearing though having been duly served. The application was heard before me ex-parte on 9/7/2012. Counsel for the applicant made oral submissions and reiterated the contents in the supporting affidavit.
3. This application stems from the decree of the judgment of this court (Nyamweya, J.) in favor of the applicant delivered on 22/11/2011. It is worthy to note that throughout the case, the Respondent has never entered appearance, responded to any pleading nor attended court for hearings. Further, at all times, the Respondent has always been served with the pleadings, but has declined to acknowledge service of the same save for the summons to enter appearance and the plaint wherein he acknowledged service by signing at the reverse of the summons.
4. There is a decree by this honorable court which has not been reviewed, set aside or appealed against. This decree therefore remains unchallenged. In that I regard, I allow the Applicant’s application dated 6/6/2012 in prayer number 2,3 and 4 with costs.
Orders accordingly.
Dated, signed and delivered this 21stday of September 2012
R. OUGO
JUDGE
In the Presence of:-
………………………………………For the Applicants
……………………………………..For the Respondents
KabiruCourt Clerk