[2018] KEELC 1815 (KLR)
The court found that the plaintiffs had not demonstrated any rights capable of protection in respect of the suit land, as they neither owned the land nor were tenants of the defendant. The only relief sought in the plaint was a permanent injunction to restrain eviction, which was denied in the main judgment. The...
Source-derived case information.
- Citation
- [2018] KEELC 1815 (KLR)
- Parties
- Applicant: Peter Muriungi; Applicant: Kaburui Leria; Respondent: Trustee Registered Catholic Parish D.O.M Laare
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 270 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Applications for Stay of Execution and Eviction Orders
- Outcome
- Plaintiffs' application dismissed; defendant's application allowed; costs to defendant.
- Legal Topics
- Stay of Execution, Eviction Orders, Injunctions, Possession of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Muriungi
Applicant
Kaburui Leria
Applicant
Trustee Registered Catholic Parish D.O.M Laare
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Applications for Stay of Execution and Eviction Orders
Legal Issues
- 1 Whether the plaintiffs are entitled to a stay of execution pending appeal.
- 2 Whether the defendant is entitled to orders authorizing eviction of the plaintiffs from the suit land.
- 3 Whether the plaintiffs have any rights capable of protection in respect of the suit land.
Ratio Decidendi
The court found that the plaintiffs had not demonstrated any rights capable of protection in respect of the suit land, as they neither owned the land nor were tenants of the defendant. The only relief sought in the plaint was a permanent injunction to restrain eviction, which was denied in the main judgment. The plaintiffs had previously requested time to vacate the premises and were granted 10 days, but subsequently defied the court order to vacate. The court held that there was no basis for granting a stay of execution pending appeal, as the plaintiffs had no legal right to remain on the land and had not complied with previous court orders. Conversely, the defendant was entitled to...
Court Disposition
Plaintiffs' application dismissed; defendant's application allowed; costs to defendant.
Orders
- Plaintiffs’ application dated 18th April 2018 is dismissed.
- Defendant’s application dated 18th April 2018 is allowed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA IN MERU
ELC CASE N0. 270 OF 2016
PETER MURIUNGI............................................................................1ST APPLICANT
KABURUI LERIA...............................................................................2ND APPLICANT
VERSUS
TRUSTEE REGISTERED CATHOLIC PARISH D.O.M LAARE...RESPONDENT
RULING
There are two pending applications, both filed on 18th April 2018, one for the plaintiffs, the other is for the defendant.
Plaintiffs’ application
Plaintiffs are seeking for a stay of execution pending the hearing and determination of appeal. The grounds in support of this application are that the applicants have already filed a notice of appeal. They also aver that respondent is illegally and irregularly trying to execute an order which he never sought and which was never granted in the decree of this court. Applicants aver that they stand to suffer irreparable loss and damages if their application is not allowed.
The first plaintiff, one Peter Muriungi has also sworn a supporting affidavit where he avers that no counter claim was filed by defendant and hence the eviction orders sought are unmerited.
Defendant’s application
Defendant is seeking orders to authorize M/S Jocet auctioneers to use all necessary means to remove the plaintiffs and their properties from land parcel number Ithima/Ntuene/1474 and deliver possession thereof to defendant. The grounds in support of this application are that plaintiffs have totally refused to vacate the suit land. There is a supporting affidavit of one Augostino Murea who has given an account of how plaintiffs had sought for time to vacate the suit land. He also avers that plaintiffs had earlier on defied a court order to move from the suit land.
Determination
Having weighed all the arguments of the parties herein, I have found it necessary to revisit the orders which were sought by the plaintiffs in this suit. The only prayer in the plaint, save the one on costs, is “An order of permanent injunction restraining the defendants, its agents, servants, assignees or anyone acting on its behest from evicting and/or interfering with plaintiffs’ peaceful possession from parcel no. 1474 at Laare market.”
Judgment thereof was delivered on 26/1/2018, where it was stated as follows; “Plaintiffs have not demonstrated that they have any rights capable of being protected in respect of the suit land. They don’t own the land and they are not tenants of defendant. They are therefore not entitled to the prayers in the plaint.”The plaintiffs cannot now advance a claim that they are entitled to stay on the land because there was no counter claim to have them evicted.
Further, I note that when judgement was delivered on 26th January 2018 counsel for the plaintiffs had addressed the court as follows; “I pray for a stay for 30 days to enable the plaintiffs to vacate the suit land premises and get alternative space.” The court granted the plaintiffs 10 days. There is no plausible explanation as to why the plaintiffs have made an about turn whereby they now want to stay on the suit land.
It is also not lost to this court that plaintiffs have defied the court order issued on 20th February 2018. I therefore find that the prayers sought by the plaintiffs are not merited.
Final orders
1) Plaintiffs’ application dated 18th April 2018 is hereby dismissed.
2) Defendant’s application dated 18th April 2018 is allowed.
3) Plaintiffs are condemned to pay costs in both applications
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 26TH DAY OF SEPTEMBER, 2018 IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Thangicia holding brief for H. Gitonga for defendant
1st plaintiff
HON. LUCY. N. MBUGUA
ELC JUDGE