[2023] KEELC 201 (KLR)
The court found that the plaintiffs had successfully prosecuted the suit and obtained judgment for vacant possession, with the defendant granted sixty days to vacate. The defendant failed to comply for over five years and did not provide a valid reason for remaining on the property. There was no subsisting stay of...
Source-derived case information.
- Citation
- [2023] KEELC 201 (KLR)
- Parties
- Plaintiff: Amiral Hassanali Mohammed; Plaintiff: Zarina Amirali Hassanali Mohammed; Defendant: John Odero Nyaganga alias Joseph O. Nyaganga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 265 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Eviction Application
- Outcome
- application granted
- Judges
- NA Matheka
- Legal Topics
- Eviction Orders, Execution of Judgment, Vacant Possession, Court Process Abuse
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Amiral Hassanali Mohammed
Plaintiff
Zarina Amirali Hassanali Mohammed
Plaintiff
John Odero Nyaganga alias Joseph O. Nyaganga
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Eviction Application
Legal Issues
- 1 Whether the plaintiffs are entitled to an eviction order against the defendant for failure to surrender vacant possession as per the judgment.
- 2 Whether the defendant has provided valid reasons for not vacating the suit property.
- 3 Whether the plaintiffs followed the correct procedure for execution of the decree.
Ratio Decidendi
The court found that the plaintiffs had successfully prosecuted the suit and obtained judgment for vacant possession, with the defendant granted sixty days to vacate. The defendant failed to comply for over five years and did not provide a valid reason for remaining on the property. There was no subsisting stay of execution, and the defendant's actions amounted to an abuse of court process, unjustly denying the plaintiffs the benefit of their judgment. The court held that the plaintiffs were entitled to an eviction order, and police assistance was warranted to enforce the order and maintain law and order. The application was therefore merited and granted.
Court Disposition
application granted
Orders
- The defendant/respondent is to vacate possession from Plot No Mombasa/Block V/Mainland South/133 within thirty days upon service of this order, failing which an eviction order shall issue forthwith.
- The Officer in Charge, Shell Beach Police Station, is to supervise the execution of the order and provide police assistance for maintaining law and order.
Full Case Text
Judgment text and source record
20 paragraphs
Mohammed & another v Nyaganga (Environment & Land Case 265 of 2008) [2023] KEELC 201 (KLR) (26 January 2023) (Ruling)
Neutral citation: [2023] KEELC 201 (KLR)
Republic of Kenya
In the Environment and Land Court at Mombasa
Environment & Land Case 265 of 2008
NA Matheka, J
January 26, 2023
Between
Amiral Hassanali Mohammed
1st Plaintiff
Zarina Amirali Hassanali Mohammed
2nd Plaintiff
and
John Odero Nyaganga alias Joseph O. Nyaganga
Defendant
Ruling
1. The application is dated October 3, 2022 and is brought pursuant to order 51 Rule 1, Order 22 Rules 6 and 7, of theCivil Procedure Rules and Sections 1A, 1B, 3A, 3B & 63(e) of the Civil Procedure Act seeking the following orders;1. That the Application be certified as urgent and service thereof be dispensed with in the first instance.2. That the Defendant/Respondent is indefault of vacant possession from Plot No Mombasa/Block V/Mainland South/ 133 Measuring 0. 267 ha (the suit premises) as per order by the court in judgment delivered on November 1, 2017. 3.That an order of eviction is hereby issued against the defendant/respondent herein namely John Odero Nyaganga.4. That the Officer in Charge, (OCS) Shell beach Police Station to supervise the exercise of the above order and provide police assistance for the purpose of maintaining Law and Order.5. That the cost of this application be provided for.
2. It is based on the grounds that the Plaintiffs/Applicants successfully prosecuted this suit against the defendant and judgment was entered on November 1, 2017 in favor of the Plaintiff/Applicants. That the judgment is in favor of the applicants and orders the Defendant/Respondent granted sixty (60) days from the date of the judgment to voluntary surrender vacant possession in default the applicant to use lawful means to obtain vacant possession. That since November 1, 2017 to date the Defendant/Respondent has not willfully surrender vacant possession to the Plaintiff being a period of over five (5) years. That the Defendant/Respondent mischievously planned the delay by filing an appeal and sought a stay of the execution of the decree herein and which stay order issued on June 26, 2018 was set aside with cost to the applicant. That this Honourable court found no merit in sustaining the Respondent stay as it amounted to open abuse of the court process. That the Respondent has unfairly prevented the Applicants from enjoying the fruits of their judgment and thus this court shall be justified in granting the orders sought in line with the default clause issued in this court's judgment. 3. The Respondent submitted that the Environment and Land Court Act provided for the execution of court judgements/orders/decrees as provided in the Civil Procedure Act and Rules. That the Applicant has not followed that procedure and has not attached a copy of the application to execute the decree and a warrant to the court bailiff to execute the decree. That the Respondent is not in occupation of the suit property. That the Applicant has not adduced evidence that they were attempts to get vacant possession and the same was resisted.
4. This court has considered the application and submissions therein. I have perused the court record and find that the Plaintiffs/Applicants successfully prosecuted this suit against the Defendant and judgment was entered on November 1, 2017 in favor of the Plaintiff/Applicants. That the judgment is in favor of the Applicants and orders the Defendant/Respondent granted sixty (60) days from the date of the judgment to voluntary surrender vacant possession in default the applicant to use lawful means to obtain vacant possession. There is no stay in this matter and the Applicant should not be denied the fruits of his judgement. The Respondent has no valid reason why he has not moved out of the suit property. I find that the application is merited and I grant the following orders;1. That Defendant/Respondent is to vacate possession from Plot No Mombasa/Block V/Mainland South/ 133 Measuring 0. 267 ha (the suit premises) as per order by the court in judgment delivered on November 1, 2017 within the next 30 (thirty) days upon service of this order and in default eviction order to issue forthwith.2. That the Officer in Charge, (OCS) Shell beach Police Station to supervise the exercise of the above order and provide police assistance for the purpose of maintaining Law and Order.3. Costs of this application to the paid by the Defendant/Respondent.It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 26TH DAY OF JANUARY 2023. N.A. MATHEKAJUDGE