[2023] KEELC 559 (KLR)
The court found that the plaintiff had obtained a valid judgment on February 7, 2014, ordering the defendants to vacate the suit land within six months and pay damages for trespass. The defendants failed to comply with the judgment, and there was no evidence of an appeal or stay of execution. The court held that the...
Source-derived case information.
- Citation
- [2023] KEELC 559 (KLR)
- Parties
- Plaintiff: Joyce Nyansiaboka Onchomba; Defendant: Joseph Kenyanya; Defendant: Rosa Kenyanya; Defendant: Maria Kenyanya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 95 of 2007
- Procedural Posture
- Civil Suit / Ruling on Application for Eviction and Enforcement of Judgment
- Outcome
- Application allowed. Eviction order granted.
- Judges
- M Sila
- Legal Topics
- Eviction Orders, Enforcement of Judgments, Trespass Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joyce Nyansiaboka Onchomba
Plaintiff
Joseph Kenyanya
Defendant
Rosa Kenyanya
Defendant
Maria Kenyanya
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Eviction and Enforcement of Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to enforcement of the judgment delivered on February 7, 2014 ordering the defendants to vacate the suit land.
- 2 Whether an eviction order should be issued against the defendants for failure to comply with the court's judgment.
- 3 Whether the OCS Tabaka Police Station should provide security to facilitate execution of the eviction order.
Ratio Decidendi
The court found that the plaintiff had obtained a valid judgment on February 7, 2014, ordering the defendants to vacate the suit land within six months and pay damages for trespass. The defendants failed to comply with the judgment, and there was no evidence of an appeal or stay of execution. The court held that the plaintiff was entitled to enforce the judgment and enjoy its fruits. Consequently, the court granted the application for eviction, authorized the appointment of a licensed auctioneer to execute the eviction, and directed the OCS Tabaka Police Station to provide security during execution. The court further ordered that the defendants bear the costs of the application and any...
Court Disposition
Application allowed. Eviction order granted.
Orders
- The plaintiff is at liberty to evict the defendants from land parcel South Mugirango/Bosinange/2855.
- The plaintiff may appoint any authorized court broker or auctioneer to execute the eviction order.
Full Case Text
Judgment text and source record
23 paragraphs
Onchomba v Kenyanya & 2 others (Civil Suit 95 of 2007) [2023] KEELC 559 (KLR) (2 February 2023) (Ruling)
Neutral citation: [2023] KEELC 559 (KLR)
Republic of Kenya
In the Environment and Land Court at Kisii
Civil Suit 95 of 2007
M Sila, J
February 2, 2023
Between
Joyce Nyansiaboka Onchomba
Plaintiff
and
Joseph Kenyanya
1st Defendant
Rosa Kenyanya
2nd Defendant
Maria Kenyanya
3rd Defendant
Ruling
(Application for eviction; judgment given in favour of the plaintiff whereby the defendants were ordered to vacate the suit land; defendant having failed to vacate the land; application allowed) 1. The application before me is that dated July 21, 2022 filed by the successful plaintiff. The application seeks orders to have the applicant enforce the judgment delivered on February 7, 2014 and for the court to issue an eviction order to be executed by M/s Odongo Investment Auctioneers against the defendants/respondents. The applicant also seeks an order directing the OCSTabaka Police Station to provide security to facilitate execution of the eviction order. Despite being served the defendants have filed nothing to oppose the application and their counsel failed to attend court when the application was heard inter partes. In the affidavit in support of the application, the applicant has averred that she filed suitinter alia seeking eviction of the respondents from the land parcel South Mugirango/Bosinange/2855 (the suit land) and that judgment was given in her favour on February 7, 2014. Thereafter a decree was extracted. She has pointed out that the judgment gave the respondents 6 months from February 7, 2014 to vacate the land which have since lapsed without the respondents moving out. She has averred that Odongo Investment Auctioneers is a duly licenced auctioneer and she has annexed his licence.
2. I have gone through the record. Indeed, the applicant did file suit against the respondents on August 20, 2007 wherein she inter alia sought orders to have the respondents evicted from the suit land. The case was heard and judgment delivered by Okong’o J on February 7, 2014. The judgment was in favour of the applicant. In the judgment, the court ordered the respondents to vacate and hand over possession of the suit land within 6 months thereof and an order of permanent injunction was issued restraining the respondents from the suit land once they vacate. There was also an order that the respondents pay the sum of Kshs 30,000/= as damages for trespass. I have seen a notice of appeal lodged on February 26, 2014 but I have no evidence of any appeal being filed nor is there any order of stay of execution of the judgment. The judgment has thus remained unexecuted since the year 2014.
3. I have no reason why the application should not be allowed. The respondents have refused to voluntarily vacate the suit land despite the judgment of the court. The applicant is entitled to enjoy the fruits of the judgment. The only recourse the applicant has is to have the respondents evicted. I allow this application. The applicant is at liberty to evict the respondents from the land parcel South Mugirango/Bosinange/2855. The applicant is at liberty to appoint any authorized court broker/auctioneer to execute the eviction order. I hereby order the OCS Tabaka Police Station to provide the requisite security. The respondents will bear the costs of this application and any costs that the applicant may incur in executing the decree.
4. Orders accordingly.
DATED AND DELIVERED THIS 2 DAY OF FEBRUARY 2023JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURT AT KISII