https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3335

Mogusu v Mbogo & another (Environment and Land Case 99 of 2020) [2026] KEELC 3335 (KLR) (2 June 2026) (Ruling) Neutral citation: [2026] KEELC 3335 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 99 of 2020 CA Ochieng, J June 2, 2026 Between Nehemiah Ochieng Mogusu Judgment Creditor and Mwihaki Mbogo 1st Judgment debtor Seventh Day Adventist Church (EA) Ltd 2nd Judgment debtor Ruling 1.What is before the court for determination is the Judgement Creditor’s Notice of Motion application dated the 7th October 2024 in which he seeks the following Orders:a.Spent.b.That this Honourable court be pleased to issue an order of eviction of the 1st Judgement Debtor/Respondent, his agents and /or anybody claiming through him from land parcel LR No. Dagoretti/Riruta/S.954, in execution of the court’s decree dated 6th July, 2023.c.That this Honourable court be pleased to direct the officer Commanding Riruta or Dagoretti Police Station to enforce this order and provide security in the implementation of the eviction order.d.That the Honourable court be pleased to issue an order that in the event of any resistance to eviction by the Judgement Debtor/Respondent, his agent and/or anybody claiming through him then the officer commanding Riruta or Dagoretti Police Station is permitted to use such reasonable force to affect the eviction.e.That the costs of this application and execution of the decree be borne by the Judgement Debtors/Respondents. 2.The application is premised on grounds on its face and on the Judgement Creditor’s supporting affidavit. He avers that judgement was delivered in the matter on 6th July 2023 and pursuant to order (iv) thereof, the 1st Judgement Debtor was ordered to vacate the suit premises within ninety (90) days from the said date, failure of which an eviction would issue. 3.He claims that despite being aware of the court’s judgement and decree issued on 11th October 2023, the 1st Judgement debtor continues todeprive him of the use and enjoyment of the suit property, as she has not yielded to this court’s eviction orders, despite there being no stay of execution in the matter. 4.The application is unopposed. 5.The Judgement Creditor filed submissions in which he relied on the case of Menge v Ondoro [2024] KEELC 1541(KLR), and in Jaber Mohsen Ali &Priscillah Boit & another [2014] KEELC 132(KLR), to urge the court to issue the orders sought. Analysis and Determination 6.I have considered the instant Notice of Motion application including the supporting affidavit and submissions and the sole issue for determination is whether an eviction order should issue against the 1st Judgement Debtor, pursuant to judgement entered herein on 6th July 2023 and a subsequent decree issued. 7.Under Section 38 of the Civil Procedure Act, a decree-holder is entitled to execute a decree through delivery of possession and removal of persons unlawfully occupying the property. 8.Section 38(a) of the Civil Procedure Act provides that:“Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree—(a)by delivery of any property specifically decreed;…” 9.Execution is a lawful process aimed at realizing the benefits of a judgment already obtained. The court's duty at the execution stage is to ensure that a successful litigant enjoys the fruits of his judgment. 10.In Wilson Ndirangu Muruthi v Charles Sameri Mukuria [2019] eKLR, Munyao Sila J (as he then was) stated as follows:“There is already judgment in favour of the Applicant and it appears as if the Respondent has not adhered to the terms of the judgment and has refused to vacate the suit land. There is no other option to have the applicant enjoy the fruits of his judgment other than having the respondent forcefully evicted. I have no reason to deny the applicant what he has asked for in this application.” 11.On the issue of police assistance, where there is a likelihood of resistance during execution, the court has discretion to order police to ensure orderly enforcement of court orders. 12.In this instance, I note judgement was delivered in favour of the Judgement Creditor on the 6th July, 2023 wherein the 1st Judgement Debtor/Respondent, her agents and /or anybody claiming through her was to grant vacant possession from land parcel LR No. Dagoretti/Riruta/S.954, or in default, eviction orders were to issue. The Judgement Creditor claims the 1st Judgement Debtor has declined to move from the suit property despite orders against her and there are no orders of stay of execution in place. I note the instant application was not opposed. 13.Based on the facts as presented while relying on the legal provisions cited as well as associating myself with the decisions quoted, I find that since there is already a favourable judgment in favour of the Judgement Creditor and the 1st Judgement Debtor has declined to adhere to the terms of the said judgement by vacating the suit property, I have no recourse but to grant the Judgement Creditor the orders as sought. 14.In the foregoing, I find the instant Notice of Motion application merited and will allow it in the following terms:i.That an order of eviction be and is hereby issued against the 1st Judgement Debtor/Respondent, her agents and /or anybody claiming through her from land parcel LR No. Dagoretti/Riruta/S.954, in execution of the court’s decree dated 6th July,2023.ii.The Officer Commanding Riruta or Dagoretti Police Station is hereby directed to enforce this order and provide security in the implementation of the eviction order.iii.That the costs of this application and execution of the decree be borne by the Judgement Debtors/Respondents. DATED SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JUNE, 2026CHRISTINE OCHIENGJUDGEIn the presence of:Ondiwa for Rachuonyo for 2nd RespondentMaosa holding brief for Sheila Mugo for 1st RespondentCourt Assistant: Brandy