[2021] KEELC 4473 (KLR)
The court held that substantive eviction orders cannot be granted in the absence of a pending suit, as such orders must flow from a court's determination of the substantive issues. Since the plaintiff's claim had already been dismissed and there was no pending suit, the application for eviction was unmerited....
Source-derived case information.
- Citation
- [2021] KEELC 4473 (KLR)
- Parties
- Plaintiff: Mbaya Mungania; Defendant: Kaimuri Mungania
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 54 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Application for Eviction and Lifting of Cautions
- Outcome
- application dismissed
- Legal Topics
- Eviction Orders, Land Cautions, Post Judgment Applications, Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mbaya Mungania
Plaintiff
Kaimuri Mungania
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Application for Eviction and Lifting of Cautions
Legal Issues
- 1 Whether the court can issue eviction orders in the absence of a pending suit.
- 2 Whether the court can lift cautions or restrictions not issued by it during the suit.
Ratio Decidendi
The court held that substantive eviction orders cannot be granted in the absence of a pending suit, as such orders must flow from a court's determination of the substantive issues. Since the plaintiff's claim had already been dismissed and there was no pending suit, the application for eviction was unmerited. Similarly, the court found that it could not lift cautions or restrictions that were not issued by it during the suit. As a result, the application was dismissed in its entirety with no orders as to costs.
Court Disposition
application dismissed
Orders
- The application dated 21.2.2020 is dismissed with no orders as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 54 OF 2007
MBAYA MUNGANIA.................................PLAINTIFF/APPLICANT
VERSUS
KAIMURI MUNGANIA .....................DEFENDANT/RESPONDENT
RULING
1. Before me is an application dated 2. 2.2020 where the applicant/defendant is seeking the following orders:
(i) That this honorable court be pleased to issue an order for eviction against the plaintiff/respondent Mbaya Mungania his family, servants, agents or any other persons living/inhabiting land parcel no. Kiirua/Ruiri/3802, 3803 and 3804 on his behest.
(ii) That the honourable court be pleased to issue orders lifting the cautions and any other restriction and inhibitions placedon the land parcel no. Kiirua/Ruiri/3802, 3803 and 3804.
(iii) That costs for this application be provided for.
2. The applicant avers that this is a concluded matter where plaintiff’s claim was dismissed and he should therefore vacate and move to parcel no. 3711 which he was given by his father.
3. No response was filed in respect of the application.
4. I find that the orders sought for eviction ought to flow from a court’s determination. As such, the substantive orders of eviction cannot be issued when there is no suit. Likewise, the orders sought in prayer (2), are unmerited as no restrictions and inhibitions were issued by this court during the lifespan of the suit.
5. The application dated 21. 2.2020 is dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED AT MERU THIS 3RD DAY OF FEBRUARY, 2021
HON. LUCY. N. MBUGUA
ELC JUDGE
ORDER
The date of delivery of this Ruling was given to the advocates for the parties through a virtual session via Microsoft teams on 28. 10. 2020. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this Ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.
HON. LUCY N. MBUGUA
ELC JUDGE