[2023] KEELC 22131 (KLR)

Pasha Enterprises Ltd v Kenya Farmers Association & another; County Government of Machakos (Interested Party) (Environment & Land Case 130 of 2015) [2023] KEELC 22131 (KLR) (6 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22131 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Environment & Land Case 130 of 2015

A Nyukuri, J

December 6, 2023

Between

Pasha Enterprises Ltd

Plaintiff

and

Kenya Farmers Association

1st Defendant

Jane Itembe

2nd Defendant

and

County Government Of Machakos

Interested Party

Ruling

Introduction 1. Before court is a notice of motion dated 31st October 2023 filed by the 1st Defendant seeking the following orders;a.Spentb.Spentc.The Plaintiff decree holder herein be barred and restrained from carrying out any execution of the judgment and decree herein, or any eviction of the 1st Defendant Kenya Farmers Association Limited from the suit premises herein, without and before taking out and following through with the requisite execution proceedings and processes, as laid out under Order 22 Rule 18 (1) of the Civil Procedure Rules 2010 and under sections 152 B, 152E, & 152 F of the Land Act No. 6 of 2012. d.Kande Auctioneers be and are hereby summoned to court, and be and are hereby ordered to explain and to furnish the court with any warrant or eviction orders or any other authority issued by the court to the said Kande Auctioneers, authorizing him/them to evict the 1st Defendant Kenya Farmers Association Limited from the suit premises herein, as was attempted on 26/10/2023. e.M/S Pasha Enterprises Limited the Plaintiff herein and M/S Kande Auctioneers, be ordered and condemned to pay compensatory and punitive damages to Kenya Farmers Association Limited the 1st Defendant herein, for the illegal, unprocedural and irregular invasion of and attempted eviction of the 1st Defendant from the suit premises herein on 26/10/202 or any other date.f.M/S Pasha Enterprises Limited the Plaintiff herein and M/S Kande Auctioneers, be and are hereby appropriately sanctioned, fined and /or otherwise punished by the court for their illegal, unprocedural and irregular invasion of and attempted eviction of the 1st Defendant Kenya Farmers Association Limited from the suit premises herein, on 26/10/ 2023 or any other date without following the due process.g.Costs of this application be borne by the Plaintiff Decree Holder and by Kande Auctioneers, jointly and severally.

2. The application is supported by an affidavit sworn on 31st October 2023 by one David Ole Naeku, the acting company secretary of the applicant. He deponed that he was aware that judgment was entered against the applicant on 31st January 2019 and that he has appealed against the judgement but was unable to file record of appeal due to unavailability of typed proceedings. He stated that to date there has never been any application to execute the judgment herein, no notice to show cause, notice of eviction or warrants or eviction orders, yet on the morning of 26th October 2023, a rowdy gang send by Kande Auctioneers descended on the applicant’s premises and began evicting them on the basis of the judgment herein. He complained that the eviction was unlawful, irregular, unprocedural and failed to comply with mandatory legal processes for execution of decrees. That during the eviction, the applicant’s goods including seeds, fertilizers and animal feeds were destroyed. He insisted that the suit property belongs to County Council of Masaku and that the applicant has occupied the same for over 50 years.

3. He asserted that the suit property has never been owned by the plaintiff and the plaintiff’s documents of ownership were fake. That counsel for the applicant has cautioned both the court and the plaintiff’s counsel to ensure due process is followed before execution of the decree. He attached the notice of appeal dated 31st January 2019 filed on 1st February 2019; the order of this court dated 5th July 2023; letters dated 18th February 2022; 28th October 2019 and 31st January 2019 from the applicant’s counsel; decree; OB report; search certificate; and counsel’s letters dated 6th July 2023 and 23rd October 2023.

4. The application is opposed. Samuel Kimondo Theuri the plaintiff’s Managing Director filed a replying affidavit dated 21st November 2023. He deponed that in the judgment of this court made on 31st January 2019, the court found that the plaintiff was entitled to vacant possession of parcel no. Machakos Town Block 1/ 67 and ordered the eviction of the applicant. Further that the application by the applicant to set aside the judgment and to join the interested party were dismissed. That the searches produced by the applicant will not aid them in the application as there is a judgment by court pronouncing that the suit property of the plaintiff and that in any event, those searches were availed to court before judgment was entered into. He stated that court orders cannot be made against persons who have not been given opportunity to be heard and that Kande auctioneer is not party to this suit and was not allowed to respond to the application. He stated that the prayer for stay cannot be granted as the court already dismissed the application for stay in the ruling dated 5th July 2023 hence the court is functus officio.

5. He stated that the plaintiff was not bound by the provisions of Order 22 Rule 18 of the Civil Procedure Rules as the decree was not issued over a year ago. He stated that provisions of sections 152B, 152E and 152F of the Land Act did not apply in the circumstances of this case as there is already a decree of the court. He stated further that the applicant was issued with the notice through a letter to his advocate. He stated that prayers 5 and 6 of the application were untenable. He stated further that none of the applicant’s goods were damaged and no evidence has been tendered for that assertion. He averred that warrants were not necessary as he was not attaching goods but only seeking vacant possession. He stated that there are no stay orders and nothing bars the applicant from voluntarily moving out of the suit property and that therefore their acts are meant to deny the plaintiff enjoying fruits of their judgment. He maintained that this court was functus officio and that the applicant’s letter concerning the issues raised in the application was responded to. He attached the judgment, rulings dated 26th July 2019 and 5th July 2023, decree and letters between the counsels herein.

6. The application was canvassed by way of written submissions. On record are the applicant’s submissions and the respondent/plaintiff’s submissions both filed on 30th November 2023.

Applicant’s submissions 7. Counsel for the applicant submitted that Order 22 Rule 6 of the Civil Procedure Rules makes it mandatory for a decree holder to make an application to court for execution and that execution without application is irregular. Counsel argued that Order 22 Rule 18 of the Civil Procedure Rules makes it mandatory for a notice to show cause to issue before execution of a decree which is more than a year old and that the only exception is where there is a previous application for execution. Counsel relied on the case of Moses Kipkurui Bor v John Chirchir [2019]e KLR and argued that as the judgment was issued on 31st January 2019, five years had lapsed and therefore execution without Notice to show cause was irregular.

8. It was further submitted that Kande Auctioneers proceeded without an eviction order or warrants. Counsel argued that by acting on the written instructions issued by the plaintiff’s counsel, they were acting irregularly.

9. Counsel also contended that no eviction order was issued under sections 152B and 152E of the Land Act. Counsel argued that a person cannot evict another who is in unlawful occupation of land without complying with eviction procedures under the Land Act. Counsel argued that the applicant was entitled to a three months’ notice, which was not issued. Counsel relied on section 34 of the Civil Procedure Act to argue that as the auctioneers were the decree holder’s agents, the applicant was entitled to compensation. Reliance was placed on the case of Nandlal Jivraj Shah & 2 Others v Kingfisher Agencies [2018]e KLR for the proposition that a claim arising from execution should be filed in the suit where execution was done.

10. On whether the court was functus officio, counsel submitted that the earlier application for stay which was dismissed is different from the current application.

Respondent’s submissions 11. Counsel for the respondent submitted that execution in this case ought not be in accordance with Order 22 Rule 18 as the decree was issued by the court on 9th October 2023 and therefore a year had not lapsed when execution was done. Counsel argued that an application for stay was dismissed in July this year and that the applicant had four months to vacate the suit property as ordered in the judgment and does not have to wait for application for execution. Counsel argued that the applicant was informed of the eviction vide a letter produced as annexure SKM5

12. As regards sections 152B, 152E and 152F of the Land Act, counsel argued that the same were inapplicable in the circumstances of this case as they were only applicable where eviction would be done without filing suit and not where there is a judgment for eviction like in this case.

13. Counsel further submitted that Kande Auctioneers are not parties to this suit and orders against them cannot issue since they have not been joined to these proceedings and that that would amount to condemning them unheard. To buttress this position, reliance was placed on the case of Republic v Kenyatta University ex parte Ochieng Orwa Domnick & 7 others.

Analysis and determination 14. The court has carefully considered the application and the response thereto and rival submissions, the issues that arise for determination are;a.Whether the court is functus officiob.Whether the attempted eviction of the applicant complied with the law.c.Whether the applicant is entitled to compensation as sought and for orders punishing the respondent and Kande Auctioneers.

15. The Blacks Law Dictionary, 11th edition defines the term functus officio as;[Latin “having performed his or her office”] (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.

16. Therefore a court is said to be functus officio where it has already discharged its mandate on a specific question or matter.

17. In the instant matter, the respondent argued that as this court already dealt with an application for stay of execution vide its ruling of 5th July 2023, then it is functus officio and should not determine the application herein. I note that while the ruling of 5th July 2023 was in regard to an application seeking stay of execution pending appeal, the current application faults the execution process undertaken by the plaintiff. That being the case, this court is under duty to ensure that executions done herein comply with the law. As this is the first time the question of the legality of the execution process is being raised in regard to the attempted eviction done on 26th October 2023, I find and hold that this court is not functus officio and is properly seized with the jurisdiction to determine the application herein.

18. On the legality of the execution undertaken by the plaintiff, the applicant challenged the process of execution on three fronts. To begin with, the applicant argues that the execution did not comply with order 22 Rule 18 of the Civil Procedure Rules and sections 152B, 152E and 152 F of the Land Act. They also challenge execution done herein on the basis that no application for execution was made or warrants issued to the auctioneer.

19. Order 22 Rule 18 of the Civil Procedure Rules provides for notice to show cause against execution in certain cases as follows;1. Where an application for execution is made-a.More than one year after the date of the decree;b.Against the legal representative of a party to the decree or,c.For attachment of salary or allowance of any person under rule 43,The court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause on a date to be fixed, why the decree should not be executed against him:Provided that no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution if the application is made within one year from the date of the last order against the party against whom the execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment- debtor, if upon a previous application for execution against the same person the court has ordered execution to issue against him:Provided further that no such notice shall be necessary on any application for the attachment of salary or allowance which is caused solely by reason of the judgment debtor having changed his employment since a previous order for attachment.2. Nothing in subrule (1) shall be deemed to preclude the court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.3. Except as provided in rule (6) and in this rule, no notice is required to be served on a judgment debtor before execution is issued against him.

20. It is therefore clear that a notice to show cause is not mandatory in all executions, but is only issued in certain cases where execution is issued one year after the date of the decree against the legal representative of a party to the decree or for attachment of salary or allowance of any person under rule 43. Even in instances where the above circumstances exist, a notice need not be issued where an application for execution is made within one year from the date of the last order against the judgment debtor, or where the latter changes employment or if the notice will cause unreasonable delay or defeat the ends of justice.

21. In this case, the decree was issued on 9th October 2023 and the alleged eviction happened on 26th October 2023, and therefore one year had not lapsed as envisaged in the rules. In any event, the last order made against the applicant was made on 5th July 2023, which is less than a year before the alleged execution. In addition, the party against whom the decree is to be executed are the applicant personally and not their legal representatives as envisaged under the above rules. Besides, the execution herein is for eviction and not for attachment of salary or allowance as provided for in the rules. For the above reasons, Order 22 Rule 18 of the Civil Procedure Rules is not applicable in the circumstances of this case.

22. In the premises, I hold and find that the decree holder was not bound to comply with Order 22 Rule 18 of the Civil Procedure Rules.

23. Sections 152B, 152E and 152F of the Land Act provides for eviction of persons in unlawful occupation of another’s land as follows;Section 152B provides as follows;An unlawful occupant of private, community or public land shall be evicted in accordance with this Act.Section 152E provides as follows;1. If with respect to private land the owner or the person in charge is of the opinion that a person is in occupation of his or her land without consent, the owner or the person in charge may serve on that person a notice of net less than three months before the date of the intended eviction.2. The notice under subsection (1) shall-a.Be in writing and in a national and official languageb.In the case of a large group of persons, be published in atleast two daily newspapers of nationwide circulation and be displayed in not less than five strategic locations within the occupied land;c.Specify any terms and conditions as to the removal of buildings, the reaping of growing crops and any other matters as the case may require; andd.Be served on the deputy county commissioner in charge of the area as well as the officer commanding the police division of the area.Section 152F provides as follows;1. Any person or persons served with a notice in terms of sections 152C , 152D and 152E may apply to court for relief against the notice.2. The court after considering the matters set out in sections 152C, 152D and 152E may-a.Confirm the notice and order the person to vacate;b.Cancel, vary, alter or make additions to the notice on such terms as it deems equitable and just;c.Suspend the operation of the notice for any period which the court shall determine; ord.Order for compensation.

24. Therefore, the import of the provisions of the Land Act above is that where a person is in unlawful occupation of another’s land and where the owner wishes to take vacant possession without filing suit, they must comply with procedures for eviction as per the Land Act by among other matters, issuing a 90 day notice to the person said to be in an unlawful occupation, so that the latter can have the opportunity to seek redress from court if they dispute the eviction. On whether a party who has a judgment requiring vacant possession from the opposing party and in default, eviction orders to issue, like in the instant case should comply with Land Acts, my view is that the provisions of the Land Act cited by the applicant do not apply. This is because a judgment declares the parties rights and requiring a decree holder granted vacant possession to comply with the above provisions of the Land Act is akin to placing impotence on the judgment. In this case, the applicant has since January 2019 been made aware that they need to grant the plaintiff vacant possession, yet they have refused to comply. I therefore hold and find that the decree holder is not under duty to comply with sections 152B, 152 E and 152 F of the Land Act as the court has already pronounced itself on the matter and issued eviction orders, hence the said provisions do not apply in the circumstances herein.

25. The applicant’s third challenge is that Kande auctioneers attempted to evict them without an application for eviction and warrants.

26. Order 22 Rule 6 of the Civil Procedure Rules makes it mandatory for a person desirous of executing a decree to make a formal application for execution, and provides as follows;Where the holder of a decree desires to execute it, he shall apply to the court which passed the decree, or, if the decree has been sent under the provisions hereinbefore contained to another court, then to such court or to the proper officer thereof; and applications under this rule shall be in accordance with form No. 14 of Appendix A:Provided that, where a judgment in default of appearance or defence has been entered against a defendant, no execution by payment, attachment or eviction shall issue unless not less than ten days notice of the entry of judgment has been given to him either at his address for service or served on him personally, and a copy of that notice shall be filed with the first application for execution.

27. Order 22 Rule 7 of the Civil Procedure Rules provides for the instance where an oral application for execution may be made, as well as in all other instances where written applications ought to be made, as follows;1. Where a decree is for the payment of money the court may, on the oral application of the decree holder at the time of the passing of the decree order immediate execution thereof by the arrest of then judgment debtor, prior to the preparation of a warrant, if he is within the precincts of the court.2. Save as otherwise provided by subrule (1) or by any other enactment or rule, every application for the execution of a decree shall be in writing, signed by the applicant or his advocate or by some other person proved to the satisfaction of the court to be acquinted with the facts of the case, and shall contain in a tabular form the following particularsa.The number of the suitb.The names of the parties;c.The date of the decree;d.Whether any appeal has been preferred from the decree;e.Whether any, and, if any, what payment or what adjustment of the matter in controversy has been made between the parties subsequent to the decree;f.Whether any, and if any, what previous applications have been made for the execution of the decree, the dates of such applications, and their results;g.The amount with interest, if any, due upon the decree, or other relief granted thereby, together with particulars of any cross decree, whether passed before or after the date of the decree sought to be executed;h.The amount of the costs, if any awarded;i.The name of the person against whom execution of the decree is sought; andj.The mode in which the assistance of the court is required, whether-i.By delivery of any property specifically decreed;ii.By the attachment and sale of any immovable property, or by the sale without attachment or by proclamation and sale of immovable property;iii.By the arrest and detention in prison of any person;iv.By the appointment of a receiver;v.Otherwise as the nature of the relief granted may require.3. The court to which an application is made under subrule (2) may require the applicant to produce a certified copy of the decree.

28. Therefore the execution process can only be commenced by a written application in the prescribed form filed by the party seeking to execute the decree, unless it is an execution for payment of money, where an oral application may be made at the time the decree is passed. In that case, the court may order immediate execution of the decree by the arrest of the judgment debtor before a preparation of a warrant if the judgment debtor is within the court precincts. Therefore, execution can only proceed upon an application being made either in written or orally, and upon the court allowing the same. As this case involves execution by way of eviction, an application for execution can only be made in written in the prescribed form.

29. In the instant case, I have perused the court record and I note that there is no application for execution filed by the plaintiff prior to the attempted eviction of 26th October 2023. The respondent argued that the alleged execution was based on the instruction letter his advocates wrote to the auctioneer. I do not agree with the respondent that execution can be initiated by an instruction letter from the decree holder or any other person to the officer executing the decree. A letter of instruction cannot amount to an application for execution. The process of execution is a process of the court and can only be set in motion by the court upon application by the decree holder. Any process outside that framework purporting to be an execution is irregular and unlawful. In this case, the applicant ought to have filed application for execution in form No. 14 of appendix A, stating the mode of execution as eviction. Consequently, the court may then issue orders of eviction directing the auctioneer to evict the applicant. That would be the order upon which the auctioneer would proceed with the execution process. Since that was not done in this case, I find and hold that the attempted eviction herein was unlawful and irregular.

30. Concerning the prayer for compensation and sanction against the plaintiff and Kande auctioneers, I note that Kande auctioneers are not party to this suit and have not been joined to these proceedings. It is a cardinal tenet of natural justice which is embodied in Article 50 of our Constitution, that no one should be condemned unheard and therefore no orders can issue against a person who is not a party to a suit. The applicant did not join Kande auctioneers as parties to this suit for purposes of the determination of the application herein, hence the prayers sought against them are untenable, and therefore the same are rejected.

31. As regards the prayer for compensation and sanction against the plaintiff, the applicant alleged to have suffered loss of seeds, fertilizer and livestock feeds due to the attempted eviction. I have perused the evidence produced by the applicant, and I do not find any cogent evidence to prove the alleged damage and loss. In the premises, I find and hold that the claim for compensation is not proved. On the issue of the plaintiff being fined for an irregular execution, no provision of the law has been cited by the applicant to show that noncompliance with Order 22 rules 6 and 7 results in a punishment or fine as proposed by the applicant and the same is rejected.

32. The upshot is that this court finds and holds that the attempted eviction of the applicant herein done on 26th October 2023 was contrary to the provisions of Order 22 rules 6 and 7 of the Civil Procedure Rules and therefore the same is irregular and unlawful and is hereby set aside. The costs of the application are awarded to the applicant. The plaintiff is at liberty to proceed to apply for execution of the decree in accordance with the law.

33. It is so ordered.

DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 6TH DAY OF DECEMBER, 2023 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMA. NYUKURIJUDGEIn the presence of;1. Mr. Kilonzo holding brief for Mr Muli for respondent2. Ms Magana for defendant/applicant3. Court Assistant Josephine