[2019] KEELC 1636 (KLR)
The court found that the respondents had been duly served with the eviction decree relating specifically to land parcel No. N. Kabras/Kivaywa/306 and had failed to vacate within the stipulated three-month period. The court held that the execution of the decree could only be effectively carried out with the...
Source-derived case information.
- Citation
- [2019] KEELC 1636 (KLR)
- Parties
- Applicant: Musaya Mapesa; Respondent: Boyi Sitavu; Respondent: Majoni Sitavu; Respondent: Barasa Sitavu; Respondent: Bakari Makokha; Respondent: Joseph Matimba
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 374 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Eviction Application
- Outcome
- application allowed
- Judges
- NA Matheka
- Legal Topics
- Eviction Orders, Decree Execution, Police Assistance in Execution, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musaya Mapesa
Applicant
Boyi Sitavu
Respondent
Majoni Sitavu
Respondent
Barasa Sitavu
Respondent
Bakari Makokha
Respondent
Joseph Matimba
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Eviction Application
Legal Issues
- 1 Whether the respondents have failed to comply with the court's eviction decree from land parcel No. N. Kabras/Kivaywa/306.
- 2 Whether the court should order the OCS Matete Police Station to assist in the eviction and demolition of structures on the suit land.
- 3 Whether the eviction order applies only to parcel No. N. Kabras/Kivaywa/306 or also to adjacent parcels.
Ratio Decidendi
The court found that the respondents had been duly served with the eviction decree relating specifically to land parcel No. N. Kabras/Kivaywa/306 and had failed to vacate within the stipulated three-month period. The court held that the execution of the decree could only be effectively carried out with the assistance of the police under the command of the OCS Matete Police Station, as voluntary compliance had not been forthcoming. The court clarified that the eviction order applied strictly to the suit land, N. Kabras/Kivaywa/306, and not to any adjacent parcels such as N. Kabras/Kiliboti/492. The application for police assistance in enforcing the eviction was therefore merited and...
Court Disposition
application allowed
Orders
- The OCS Matete Police station to assist eviction of the respondents from land parcel No. N. Kabras/Kivaywa/306.
- No orders as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC CASE NO. 374 OF 2017
MUSAYA MAPESA........................................................PLAINTIFF/APPLICANT
VERSUS
BOYI SITAVU
MAJONI SITAVU
BARASA SITAVU
BAKARI MAKOKHA
JOSEPH MATIMBA.........................................DEFENDANTS/RESPONDENTS
RULING
The application is dated 23rd May 2019 and is brought under Sections 1A, 1B & 3A of the Civil Procedure Act & Order 22 and 51 of the Civil Procedure Rules 2010 seeking the following orders;
1. That the application herein be certified as urgent.
2. That the court do issue an order directing the OCS Matete Police station to assist in the forceful eviction of the respondent by demolishing the shop structures from land parcel No. N. Kabras/Kivaywa/306.
3. That the costs of this application be provided for.
It is based on the grounds that judgment debtors/defendants have failed, refused and or neglected to willingly vacate the suit land namely N. Kabras/Kivaywa/306. That the judgment debtors were served on 20th February, 2019 with the decree of this court given on 25th September, 2018. That it is more than 3 months since the said decree was served on the judgment debtor/defendants yet they have not willingly moved out. That execution of the decree can only be effectively undertaken by police officers under the command of the OCS Matete Police Station which is the nearest to the suit land. That the OCS will not execute the decree unless directed by this honourable court.
The 1st respondent submitted that the applicant brought this suit seeking to evict all the six of them from suit parcel namely N. Kabras/Kivaywa/306 and he is the only one who appeared because it is only him who bought a small portion from him and put up a toilet.That the rest of the defendants/respondents do not reside or have anything to do with the suit plot herein namely N. Kabras/Kivaywa/306. That all of the respondents who were sued and himself have shops on parcel namely N. Kabras/Kiliboti/492 which is owned by the Kakamega County Government and boarders the applicants land but there is an access road. That upon conclusion of the case herein the plaintiff extracted the eviction order and directed police to demolish their shops situated on the parcel namely N. Kabras/Kiliboti/492 a fact that let them to rush and file a suit before Butali Court seeking to restrain him from trespassing or demolishing their shops on the adjacent parcel of land herein. That when the applicant now seeks orders to compel the OCS to enforce the order, he is cunningly trying to force the police to cross and demolish their shops situated on different parcel of land they have cited which will occasion a serious miscarriage of justice. That the applicant has been claiming that his land extends to the access road where the shops are situated without proof.
This court has carefully considered the application and the submissions therein. It is a finding of fact that on the 26th September 2018, the court entered judgement for the applicant against the respondents in the following terms;
1. The 1st to 4th defendants, their assigns or agents are to vacate the suit land, land parcel No. N/KABRAS/KIVAYWA/306 within the next 3 (three) months from the date of this judgement and in default an eviction order to issue forthwith.
2. Costs of this suit to the plaintiff.
That the respondents were served on 20th February, 2019 with the decree of this court given on 25th September, 2018. It is more than 3 months since the said decree was served on the respondents/defendants yet they have not willingly moved out. I find that the execution of the decree can only be effectively undertaken by police officers under the command of the OCS Matete Police Station which is the nearest to the suit land. The respondent have not appealed against this decision. The order is clear that the eviction is from land parcel No. N/Kabras/Kivaywa/306 and not any other parcel. I find this application is merited and I grant the following orders;
1. That the OCS Matete Police station to assist eviction of the respondents from land parcel No. N. Kabras/Kivaywa/306.
2. No orders as to costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 26TH SEPTEMBER 2019.
N.A. MATHEKA
JUDGE