[2022] KEELC 1496 (KLR)
The court found that the plaintiff/decree holder had complied with the procedural requirements for execution of a judgment that had remained unexecuted for over one year. The defendant/judgment debtor was duly served with the notice to show cause but failed to file any response or provide a valid reason for...
Source-derived case information.
- Citation
- [2022] KEELC 1496 (KLR)
- Parties
- Plaintiff: Ntara Ole Oloibor; Defendant: Musana Ole Masoi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kilgoris
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case Case1 of 2019
- Procedural Posture
- Notice to Show Cause / Ruling on Application for Execution of Decree
- Outcome
- application for execution allowed; eviction order granted
- Judges
- EM Washe
- Legal Topics
- Execution of Decree, Eviction Orders, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ntara Ole Oloibor
Plaintiff
Musana Ole Masoi
Defendant
Procedural Posture
Notice to Show Cause / Ruling on Application for Execution of Decree
Legal Issues
- 1 Whether the plaintiff/decree holder is entitled to execution of the judgment and decree issued on 28th October 2019.
- 2 Whether the defendant/judgment debtor has shown sufficient cause to prevent execution and eviction from parcel TRANSMARA/KIMINTET D/490.
Ratio Decidendi
The court found that the plaintiff/decree holder had complied with the procedural requirements for execution of a judgment that had remained unexecuted for over one year. The defendant/judgment debtor was duly served with the notice to show cause but failed to file any response or provide a valid reason for non-compliance with the judgment and decree. The court noted that the issue of ownership of the property, TRANSMARA/KIMINTET D/490, had already been conclusively determined in favor of the plaintiff. As the defendant did not challenge the judgment or offer any legal justification for remaining on the property, the court held that the plaintiff was entitled to the fruits of his...
Court Disposition
application for execution allowed; eviction order granted
Orders
- An eviction order is granted for the forceful eviction of the defendant/judgment debtor from TRANSMARA/KIMINTET D/490 in execution of the judgment delivered on 28th October 2019.
- Execution of the eviction order shall be undertaken by Omwoyo Auctioneers as licensed court bailiffs.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT KILGORIS
FORMERLY NAROK ELC CASE NO. 28 OF 2019
ELC CASE NO. 1 OF 2022
NTARA OLE OLOIBOR..................................................PLAINTIFF/DECREE HOLDER
VERSUS
MUSANA OLE MASOI.................................................DEFENDANT/DECREE DEBTOR
RULING
The Application before the Court is the Notice to Show Cause why execution should not issue Under Order 21 Rule 18 (1) (a) of the Civil Procedure (Revised Rules.) dated 23rd November 2021.
The Notice To Show Cause was applied by the Plaintiff/Decree Holder against the Defendant/Decree Debtor pursuant to a judgment and decree of the Court dated 28th October 2019.
The Notice To Show Cause why execution should not issue dated 22nd November 2021 was duly served on the Defendant/Debtor who appeared in court on the date of the hearing in person.
The Defendant/Judgment Debtor had not filed any response to the Notice to Show Cause why Execution should not issue dated 22nd November 2021.
Counsel for the Plaintiff/Decree Holder submitted that this Application of Notice To Show cause why Execution should not be issued was necessitated by the delay in executing the judgment which was issued on the 28th October 2019.
Consequently therefore, the law requires that if a judgment has not been executed for a period of more than One year since its pronouncement, a successful party is required to comply with the provisions of Section 22 Rule 18 (1)(a).
According to the Court records, the judgment and Decree was issued on the 28th October 2019.
Indeed, the Judgment and Decree issued on the 28th October 2019 has not been executed for a period of more than One Year.
Similarly, the Defendant/Judgement Debtor has also not challenged the said Judgment and/or Decree dated 28th October 2019 so far.
According to the Ground Report by the Mr. S.W. Githinji, Land Registrar, Transmara West/East, it is clear that the Defendant/Judgment Debtor occupies the property known as TRANSMARA/KIMINTET D/490.
The Judgment delivered by trial Judge on the 28th October 2019 concluded this dispute with a pronouncement that the Plaintiff/Decree Holder is the absolute owner of the Parcel known as TRANSMARA/KIMINTET D/490.
At the hearing of this Application of Notice to Show Cause, the Defendant/Judgment Debtor did not offer any valid reason as to why he has not complied with the Judgment and Decree of 28th October 2019.
The Defendant/Judgment Debtor simply stated that he was the owner of where he stays, an issue that has already be determined.
In the circumstances, I do not find any valid reason as to why the Plaintiff/Decree Holder should be denied the fruits of his judgment.
I therefore allow the Application For Execution of the Decree dated 22nd November 2021 and Order as follows;-
1. An eviction Order be and is hereby granted for the forceful eviction of the Defendant/Judgment Debtor as regards the property known as TRANSMARA/KIMINTET “D” /490 in execution of the Judgment delivered on the 28th October 2019.
2. The execution of the above Eviction Orders shall be undertaken by Omwoyo Auctioneers in their duties as Licensed Court bailiffs.
3. The Officer In Charge of Lolgorian Police Station shall provide the appropriate Police Assistance if need be.
DATED, SIGNED & DELIVEREDVIRTUALLY IN KILGORIS ELC COURT ON 15TH DAY OF FEBRUARY,2022
EMMANUEL. M. WASHE
JUDGE
In the Presence of :
Court Assistant: Ngeno
Counsel for the Plaintiff: O.M. Otieno
Counsel for the Defendant: N/A