[2022] KEHC 10174 (KLR)

[2022] KEHC 10174 (KLR)

The court found that although the appeal against the order for police-assisted demolition was not competent as of right under the Civil Procedure Rules, and no leave had been obtained, in the interests of justice and to avoid greater harm, it was appropriate to order a government surveyor to demarcate the boundary between the parties' parcels. The appellant was given fourteen days to facilitate the survey and seven days thereafter to remove any encroaching structures. If the appellant failed to comply, the respondent would be at liberty to demolish the encroaching buildings with police assistance. The court emphasized that the process should not be used to delay lawful execution and that...

Citation
[2022] KEHC 10174 (KLR)
Parties
Appellant: Lucy Mukuba; Respondent: Peter Gitonga
Court
High Court
Court Station
High Court at Meru
Jurisdiction
Kenya
Judgment Date
7 July 2022
Case Number
Civil Appeal 34 of 2022
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Outcome
Application for stay of execution pending appeal partially allowed with conditions.
Judges
EM Muriithi
Legal Topics
Stay of Execution, Boundary Disputes, Demolition Orders, Appeals From Orders
Source Language
English
Civil Procedure Land and Property Stay of Execution Boundary Disputes Demolition Orders Appeals From Orders

Case Brief

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Parties

Lucy Mukuba

Appellant

Peter Gitonga

Respondent

Procedural Posture

Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether the court should grant a stay of execution of the demolition order pending appeal.
  2. 2 Whether the appeal is competent in the absence of leave where required under the Civil Procedure Rules.
  3. 3 Whether a government surveyor should demarcate the boundary before demolition proceeds.

Ratio Decidendi

The court found that although the appeal against the order for police-assisted demolition was not competent as of right under the Civil Procedure Rules, and no leave had been obtained, in the interests of justice and to avoid greater harm, it was appropriate to order a government surveyor to demarcate the boundary between the parties' parcels. The appellant was given fourteen days to facilitate the survey and seven days thereafter to remove any encroaching structures. If the appellant failed to comply, the respondent would be at liberty to demolish the encroaching buildings with police assistance. The court emphasized that the process should not be used to delay lawful execution and that...

Court Disposition

Application for stay of execution pending appeal partially allowed with conditions.

Orders

  • The appellant shall pay for the costs of a government surveyor to demarcate the boundary on parcel No. Nkuene/mitunguu/1116 within fourteen (14) days.
  • The appellant shall remove any encroaching buildings or constructions within seven (7) days after the boundary determination.