[2024] KEELC 6991 (KLR)
The court found that the applicant, having expressly stated he does not dispute the respondent's claim and being of advanced age, should be afforded a reasonable period to negotiate an out of court settlement without the imminent threat of eviction. The absence of opposition from the respondent and the applicant's...
Source-derived case information.
- Citation
- [2024] KEELC 6991 (KLR)
- Parties
- Plaintiff: Josphat Kazungu Ziro Mwatela (Suing Through Christine Ziro Mwatela Vide a Power of Attorney); Defendant: Johnson Kaviha Thoya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 8 of 2007
- Procedural Posture
- Environment and Land Case / Ruling on Application for Extension of Negotiation Period
- Outcome
- Application granted; 90-day extension for negotiations allowed.
- Judges
- FM Njoroge
- Legal Topics
- Out of Court Settlement, Eviction Stay, Negotiation Period Extension
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josphat Kazungu Ziro Mwatela (Suing Through Christine Ziro Mwatela Vide a Power of Attorney)
Plaintiff
Johnson Kaviha Thoya
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application for Extension of Negotiation Period
Legal Issues
- 1 Whether the court should grant an extension of 90 days for parties to negotiate an out of court settlement.
- 2 Whether the risk of eviction justifies the extension sought by the applicant.
Ratio Decidendi
The court found that the applicant, having expressly stated he does not dispute the respondent's claim and being of advanced age, should be afforded a reasonable period to negotiate an out of court settlement without the imminent threat of eviction. The absence of opposition from the respondent and the applicant's circumstances justified granting the 90-day extension. The court exercised its discretion to allow the application, holding that the interests of justice would be served by enabling the parties to attempt an amicable resolution. The applicant was ordered to bear the costs of the application as the orders primarily benefit him.
Court Disposition
Application granted; 90-day extension for negotiations allowed.
Orders
- The application dated 27/9/2024 is granted in terms of Prayer no 4.
- The period of 90 days for negotiations shall run from the date of this order.
Full Case Text
Judgment text and source record
16 paragraphs
Mwatela (Suing Through Christine Ziro Mwatela Vide a Power of Attorney) v Thoya (Environment & Land Case 8 of 2007) [2024] KEELC 6991 (KLR) (24 October 2024) (Ruling)
Neutral citation: [2024] KEELC 6991 (KLR)
Republic of Kenya
In the Environment and Land Court at Malindi
Environment & Land Case 8 of 2007
FM Njoroge, J
October 24, 2024
Between
Josphat Kazungu Ziro Mwatela (Suing Through Christine Ziro Mwatela Vide a Power of Attorney)
Plaintiff
and
Johnson Kaviha Thoya
Defendant
Ruling
1. This court has considered the Application dated of 27/9/2024 in this matter. It seeks orders to the effect that this court be pleased to extend the period of negotiations between the parties for an out of court settlement for up to 90 days. The grounds upon which that application has been brought are at its foot and they are inter alia that the judgment was rendered against the defendant who resides in the suit premises and his application for setting aside judgment was declined, and he thus runs the risk of eviction at any moment yet he wishes to explore an out of court settlement with the plaintiff. He expressly states that he does not dispute the plaintiff’s claim now. The motion is opposed by the respondent who filed the affidavit sworn by Joseph Kanyi, Advocate dated 16/12/2022 for the purpose. That affidavit, though uploaded on CTS recently predates, the present application and I think it is not relevant to the present discourse. I note that the applicant filed submissions on 15/10/2024. According to the CTS The respondent had filed no submissions by the date of this ruling. In effect the application is not opposed by the respondent. In view of the express statement by the applicant to the effect that he does not dispute the respondent’s claim, that he is 84 years old, and that all he needs is time within which to confer over a possible amicable settlement (which may include redemption of the only home he has known for about 50 years) with the respondent freely without the risk of a forcible eviction hanging over his head like the sword of Damocles, I find that 90 days is reasonable period to ask for. I thus find that the application ought to be granted. Consequently, I hereby grant the application dated 27/9/2024 in terms of Prayer no 4 thereof. The 90 days’ extension period begin to run from the date of this order. As the orders herein primarily benefit the applicant he shall bear the costs of the application in full, to be agreed upon by the parties and in default to be taxed.
RULING DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 24TH DAY OF OCTOBER 2024. MWANGI NJOROGEJUDGE, ELC MALINDI