[2023] KEELC 18539 (KLR)
The court found that the plaintiff, having obtained judgment for eviction and general damages, was entitled to enforce the judgment after the defendants failed to vacate the suit land within the 60-day period granted. The absence of opposition from the defendants and their continued occupation of the land justified...
Source-derived case information.
- Citation
- [2023] KEELC 18539 (KLR)
- Parties
- Plaintiff: Boniface Juma Omurwa; Defendant: Paul Onchieko Ongiri; Defendant: Jonnes Onchani Ongiri; Defendant: Maria Moraa Ongiri
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 429 of 2014
- Procedural Posture
- Civil Suit / Ruling on Post Judgment Eviction Application
- Outcome
- Application allowed; eviction orders granted.
- Judges
- M Sila
- Legal Topics
- Eviction Orders, Trespass to Land, Possession of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface Juma Omurwa
Plaintiff
Paul Onchieko Ongiri
Defendant
Jonnes Onchani Ongiri
Defendant
Maria Moraa Ongiri
Defendant
Procedural Posture
Civil Suit / Ruling on Post Judgment Eviction Application
Legal Issues
- 1 Whether the plaintiff is entitled to eviction orders against the defendants after expiry of the 60-day grace period granted in the judgment.
- 2 Whether the plaintiff is entitled to enforcement assistance from the police and appointment of an auctioneer for eviction.
- 3 Whether the defendants are liable for costs and outstanding general damages for trespass.
Ratio Decidendi
The court found that the plaintiff, having obtained judgment for eviction and general damages, was entitled to enforce the judgment after the defendants failed to vacate the suit land within the 60-day period granted. The absence of opposition from the defendants and their continued occupation of the land justified the grant of eviction orders. The court further held that the plaintiff could appoint an auctioneer or court bailiff to carry out the eviction, with the Officer Commanding Station (OCS) Manga Police Station providing security. The costs of the application and any costs incurred during eviction were to be borne by the defendants, reinforcing the principle that a successful party...
Court Disposition
Application allowed; eviction orders granted.
Orders
- The plaintiff is at liberty to appoint an auctioneer or court bailiff to undertake the eviction exercise.
- The OCS Manga Police Station shall provide adequate security to the auctioneer or court bailiff during the eviction.
Full Case Text
Judgment text and source record
28 paragraphs
Omurwa v Ongiri & 2 others (Civil Suit 429 of 2014) [2023] KEELC 18539 (KLR) (4 July 2023) (Ruling)
Neutral citation: [2023] KEELC 18539 (KLR)
Republic of Kenya
In the Environment and Land Court at Kisii
Civil Suit 429 of 2014
M Sila, J
July 4, 2023
Between
Boniface Juma Omurwa
Plaintiff
and
Paul Onchieko Ongiri
1st Defendant
Jonnes Onchani Ongiri
2nd Defendant
Maria Moraa Ongiri
3rd Defendant
(Application by plaintiff seeking eviction orders; judgment given in favour of plaintiff but defendants given 60 days to vacate; defendants failing to vacate even after lapse of the 60 days; application for eviction allowed)
Ruling
1. The application before me is that dated June 16, 2023 filed by the successful plaintiff/decree holder. He wishes to have an order of eviction against the respondents and for an order for provision of security, by the OCS Manga Police Station, to M/s Betico Auctioneers, who the applicant has appointed to undertake the eviction exercise. Nothing was filed by the respondents to oppose the motion and neither they, nor their counsel, appeared during the inter partes hearing of this application despite being duly served.
2. I have given the application due consideration.
3. The applicant had commenced this suit through a plaint filed on November 13, 2014. He averred to be the registered proprietor of the land parcel Central Kitutu/Mwamanwa/1616 (the suit land) and claimed that the defendants/respondents had illegally taken possession of it. In his plaint, he wished to have them evicted from the suit land and to be permanently restrained from it. The defendants filed a defence and counterclaim vide which they sought orders to nullify the title of the applicant. I heard the case and delivered judgment on February 21, 2023. I allowed the plaintiff’s prayer for eviction but gave the respondents 60 days to vacate the land, pull down whatever structures they have, and give vacant possession. I ordered that if they do not vacate willingly then the plaintiff was at liberty to have them forcefully evicted. I also awarded the plaintiff general damages for trespass of Kshs 300,000/=.
4. In this application, the applicant points out that the respondents were given 60 days from the date of judgment to give vacant possession but they have failed to do so. He also decries that the defendants have refused to settle the award for general damages. That is why he wants the orders herein.
5. I have no reason to deny the applicant the orders sought. The respondents were given sufficient time to give vacant possession but they have failed to do so. The only way that the plaintiff can get the benefit of his judgment is by having the respondents forcefully evicted.
6. I therefore allow this application. The plaintiff is at liberty to appoint an auctioneer/court bailiff of his choice to undertake the eviction exercise. I also order the OCS, Manga Police Station, to provide adequate security to the auctioneer/court bailiff while undertaking the eviction exercise.
7. The plaintiff will have the costs of this application and any costs that may be incurred during the eviction to be shouldered by the defendants.
8. Orders accordingly.
DATED AND DELIVERED AT KISII THIS 4 DAY OF JULY 2023JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURTAT KISII