[2022] KEELC 3380 (KLR)
The court found that judgment had already been delivered requiring the defendant to vacate the suit land within six months, which period had lapsed. There was no order of stay of execution or pending appeal. The subsequent suit filed by the defendant did not operate as a bar to execution of the judgment. The court...
Source-derived case information.
- Citation
- [2022] KEELC 3380 (KLR)
- Parties
- Plaintiff: Maritina Aoro Murutu; Defendant: James Amukhoye Eshitera
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 19 of 2015
- Procedural Posture
- Notice of Motion / Post Judgment Enforcement Application
- Outcome
- Application allowed; eviction order granted.
- Judges
- DO Ohungo
- Legal Topics
- Eviction Orders, Vacant Possession, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maritina Aoro Murutu
Plaintiff
James Amukhoye Eshitera
Defendant
Procedural Posture
Notice of Motion / Post Judgment Enforcement Application
Legal Issues
- 1 Whether the defendant and persons claiming through him should be evicted from land parcel L.R No. North/Wanga/Namamali/889 pursuant to the judgment delivered on 23rd March 2021.
- 2 Whether the existence of a subsequent suit (Kakamega ELCOS No. E001 of 2021) bars execution of the judgment in this matter.
- 3 Whether there is any valid stay of execution or appeal preventing enforcement of the judgment.
Ratio Decidendi
The court found that judgment had already been delivered requiring the defendant to vacate the suit land within six months, which period had lapsed. There was no order of stay of execution or pending appeal. The subsequent suit filed by the defendant did not operate as a bar to execution of the judgment. The court held that the plaintiff was entitled to enforce the judgment and obtain vacant possession through eviction, with police assistance if necessary. The application for eviction was therefore merited and allowed.
Court Disposition
Application allowed; eviction order granted.
Orders
- James Amukhoye Eshitera (the defendant), his family, servants or any other person claiming through him be evicted from land parcel L.R No. North/Wanga/Namamali/889.
- The OCS Mirere Police Station or the nearest police station/post to provide security during enforcement of the eviction order.
Full Case Text
Judgment text and source record
22 paragraphs
Murutu v Eshitera (Environment & Land Case 19 of 2015) [2022] KEELC 3380 (KLR) (30 May 2022) (Ruling)
Neutral citation: [2022] KEELC 3380 (KLR)
Republic of Kenya
In the Environment and Land Court at Kakamega
Environment & Land Case 19 of 2015
DO Ohungo, J
May 30, 2022
Between
Maritina Aoro Murutu
Plaintiff
and
James Amukhoye Eshitera
Defendant
Ruling
1. Judgment was delivered in this matter on 23rd March 2021 as follows:1. The defendant, his relatives, servants and/or agents to vacate the suit land parcel No. N/Wanga/Namamali/889 within the next 6 (six) months from the date of this judgement and in default eviction order to issue forthwith.2. Each party to bear its own costs.
2. The plaintiff later filed Notice of Motion dated 7th January 2022, which is the subject of this ruling. The application seeks the following orders:(a)That James Amukhoye Eshitera, his family, servants or any other person claiming through him be evicted from land parcel L.R No. North/ Wanga/Namamali/889. (b)That the OCS Mirere police station or the nearest police station/post do provide security.(c)That the court do make such just orders in the circumstance.(d)That costs be provided for.
3. The application is supported by an affidavit sworn by the plaintiff. She deposed that upon delivery of the judgment, she approached the defendant on several occasions asking him to voluntarily give vacant possession but he declined. She added that there is no appeal pending against the judgment and that there is no order of stay of execution in force.
4. In response, the defendant filed a replying affidavit in which he deposed that he has filed another case being Kakamega ELCOS No. E001 of 2021 and the if the present application is allowed, it would render Kakamega ELCOS No. E001 of 2021 nugatory.
5. The parties’ counsels relied entirely on the material on record and urged the court to render a ruling.
6. I have considered the application, the affidavits and submissions of counsel. There is no dispute that judgment was delivered in this matter on 23rd March 2021 as captured above. The 6 months within which the defendant was to vacated lapsed on 23rd September 2021. There is no order of stay of execution on record. In those circumstances, there is no valid reason to keep the plaintiff from the fruits of her judgment. Existence of a separate suit, one filed long after delivery of the judgment, cannot be a bar to execution in this matter.
7. In view of the foregoing, I find merit in Notice of Motion dated 7th January 2022. I therefore make the following orders:a) James Amukhoye Eshitera (the defendant herein), his family, servants or any other person claiming through him be evicted from land parcel L.R No. North/ Wanga/Namamali/889. b) The OCS Mirere Police Station or the nearest police station/post do provide security during enforcement of the above order.c) No order on costs.
DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 30TH DAY OF MAY 2022. D. O. OHUNGOJUDGEDelivered in open court in the presence of:No appearance for the plaintiffDefendant presentCounsel for the defendant absentCourt Assistant: E. Juma