[2023] KEELC 16220 (KLR)
The Environment and Land Court at Nairobi lacked jurisdiction to execute a decree issued by the Senior Magistrate’s Court at Kikuyu because there was no order transferring the decree as required by law. The Civil Procedure Act expressly provides that execution of a decree must be undertaken by the court that issued...
Source-derived case information.
- Citation
- [2023] KEELC 16220 (KLR)
- Parties
- Applicant: Alice Nyambura Mwaura; Respondent: Peter Kamau Njuguna; Respondent: John Kuria; Respondent: Muthami Njuguna; Respondent: Wanjiru Njuguna
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E108 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Execution/eviction
- Outcome
- application dismissed
- Judges
- LN Mbugua
- Legal Topics
- Execution of Decree, Jurisdiction of Courts, Eviction Orders, Transfer of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Nyambura Mwaura
Applicant
Peter Kamau Njuguna
Respondent
John Kuria
Respondent
Muthami Njuguna
Respondent
Wanjiru Njuguna
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Execution/eviction
Legal Issues
- 1 Whether this court has jurisdiction to execute a decree issued by another court.
- 2 Whether the application for execution is properly before the Environment and Land Court.
- 3 Whether the applicant abused the court process by filing the application in this court.
Ratio Decidendi
The Environment and Land Court at Nairobi lacked jurisdiction to execute a decree issued by the Senior Magistrate’s Court at Kikuyu because there was no order transferring the decree as required by law. The Civil Procedure Act expressly provides that execution of a decree must be undertaken by the court that issued it or a court to which it has been formally transferred. The applicant had already sought execution in the originating court, and the present application amounted to an abuse of court process. Furthermore, the application and supporting affidavit were improperly headed, indicating filing in the Chief Magistrate’s Court at Milimani, not the Environment and Land Court....
Court Disposition
application dismissed
Orders
- The entire suit is dismissed with no orders as to costs.
- The file Kikuyu ELC No. 6 of 2019 is to be transmitted back to its origin at Kikuyu SPM’s Court forthwith.
Full Case Text
Judgment text and source record
29 paragraphs
Mwaura v Njuguna & 3 others (Environment and Land Miscellaneous Application E108 of 2022) [2023] KEELC 16220 (KLR) (2 March 2023) (Ruling)
Neutral citation: [2023] KEELC 16220 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment and Land Miscellaneous Application E108 of 2022
LN Mbugua, J
March 2, 2023
Between
Alice Nyambura Mwaura
Applicant
and
Peter Kamau Njuguna
1st Respondent
John Kuria
2nd Respondent
Muthami Njuguna
3rd Respondent
Wanjiru Njuguna
4th Respondent
Ruling
1. This miscellaneous suit was filed by way of a Notice of motion application dated 13. 6.2022 seeking orders to appoint a court bailiff to assist in eviction of the Respondents as well as orders that the OCS /Deputy Mutuini base Police Station be ordered to provide security during the exercise.
2. The application is based on grounds on its face and on the supporting affidavit sworn on 13. 6.2022 by the Applicant. She deposes that she filed ELC 06 OF 2019 SPM’S Court Kikuyuseeking to evict the Respondent and was granted eviction orders against the Respondents herein on 14. 9.2021. The Respondents were served with the eviction orders but have refused to vacate the suit premises.
3. I find that the decree sought to be executed was issued in another Court being, Senior Magistrate’s Court at Kikuyu. In the case of Michael Bartenge v Stephen Bartenge [2007] eKLR, the court made reference to the provisions of Section 30 of the Civil Procedure Act which provides that;“A decree may be executed either by the court which passed it or by the court to which it is sent for execution.”
4. Section 34 (1) of the Civil Procedure Act further provide that;“(1)All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.”
5. There are no orders transferring the decree of the trial court to this court as the law contemplates, thus this Court has no jurisdiction to order execution of a decree issued in another Court.
6. It is noted that this court had called for the Kikuyu SPM’S court file no. ELC 6 OF 2019 for perusal. The records therein indicate that the Applicant herein had made an application to execute the decree which application was determined by that court. This application is therefore an abuse of the Court process.
7. Finally, I find the Notice of motion application dated 13. 6.2022 before this court as well as the supporting affidavit bears the heading. “In The Chief Magistrate’s Court At Milimani.” It follows that there is no proper suit filed before this court.
8. This entire suit is hereby dismissed with no orders as to costs. The file Kikuyu ELC No. 6 Of 2019 is to be transmitted back to its origin at Kikuyu SPM’s Court forthwith.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF MARCH, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Miss Mwaura for the ApplicantCourt assistant: Vanilla