[2017] KEELC 1482 (KLR)
The court found that the respondent was duly served with the application for enforcement of the judgment but failed to respond or attend court. The original judgment had clearly stipulated that the respondent would be evicted if he failed to vacate the suit property within 60 days. As the respondent did not comply...
Source-derived case information.
- Citation
- [2017] KEELC 1482 (KLR)
- Parties
- Applicant: Moses Maina Kimondo; Respondent: Elihah Waweru Kimondo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 674 of 2014
- Procedural Posture
- Notice of Motion / Post Judgment Enforcement
- Outcome
- Application allowed. Prayers 2 and 3 of the Notice of Motion dated 13th July, 2017 granted.
- Judges
- L Waithaka
- Legal Topics
- Eviction Orders, Enforcement of Judgment, Possession of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Maina Kimondo
Applicant
Elihah Waweru Kimondo
Respondent
Procedural Posture
Notice of Motion / Post Judgment Enforcement
Legal Issues
- 1 Whether the respondent should be evicted from L.R NO. Ruguru/ Kiamanga/ 11/29 for failing to vacate as ordered by the court.
- 2 Whether the eviction should be carried out by a named auctioneer to ensure peace during the process.
Ratio Decidendi
The court found that the respondent was duly served with the application for enforcement of the judgment but failed to respond or attend court. The original judgment had clearly stipulated that the respondent would be evicted if he failed to vacate the suit property within 60 days. As the respondent did not comply with the court's order, the court granted the applicant's request for eviction and allowed the eviction to be conducted by the named auctioneer to ensure peace during the process.
Court Disposition
Application allowed. Prayers 2 and 3 of the Notice of Motion dated 13th July, 2017 granted.
Orders
- The respondent shall be evicted from L.R NO. Ruguru/ Kiamanga/ 11/29 by Richard Njoroge Wachira trading as Green bells Auctioneers.
- The eviction shall be carried out to ensure peace prevails during the exercise.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NYERI
ELC CASE NO. 674 OF 2014
MOSES MAINA KIMONDO........................PLAINTIFF/APPLICANT
-VERSUS-
ELIHAH WAWERU KIMONDO...........DEFENDANT/RESPONDENT
RULING
1. The notice of motion dated 13th July, 2017 seeks to enforce the judgment of this court delivered on 28th March, 2017. Vide that judgment, this court allowed the applicant’s suit for eviction of the respondent from L.R NO. Ruguru/ Kiamanga/ 11/29 if the defendant failed to vacate the suit property within 60 days.
2. The application is premised on the ground that the respondent has refused to vacate the suit property and has been issuing death threats to the plaintiff and his family.
3. To ensure that peace prevails during the eviction exercise, the applicant prays that the exercise be carried out by Richard Njoroge Wachira trading as Green bells Auctioneers.
4. When the matter came up for hearing on 26th July 2017, the applicant informed the court that the respondent was served with the application by Simon Ndirangu Ndumia, a licensed process server on 20th July 2017; that the respondent accepted service but declined to sign the process server’s copy. In support, the applicant filed an affidavit of service sworn on 20th July, 2017 by Simon Ndirangu Ndumia.
5. There being no response to the application and the defendant having failed to attend court, the applicant urged the court to allow the application as prayed.
6. When judgement was delivered in open court on 28th March 2017, both the plaintiff and the defendant were present in court. The orders of the court were clear that the defendant would be evicted from the suit property if he failed and or refused to vacate the suit property within 60 days.
7. Having failed to vacate the suit property as ordered by the court, I hereby grant prayers 2 and 3 as sought in the Notice of Motion dated 13th July, 2017.
Dated, Signed and Delivered in open court at Nyeri this 27th day of September, 2017.
L N WAITHAKA
JUDGE
In the presence of:
Moses Maina Kimondo/applicant
No appearance for the defendant
Court assistant – Esther