[2022] KEELC 1789 (KLR)
The court found that the applicant obtained a valid judgment and decree for possession of the suit property, with the respondent granted 45 days to vacate. The respondent did not appeal the judgment and her applications for stay of execution were dismissed. The court held that the mere pendency of objection...
Source-derived case information.
- Citation
- [2022] KEELC 1789 (KLR)
- Parties
- Plaintiff: Prisila Jesondin Chumo; Defendant: Nelly Jebor alias Nelly Chebor
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 113 of 2016
- Procedural Posture
- Notice of Motion / Ruling on Post Judgment Eviction and Demolition Application
- Outcome
- Application allowed; eviction and demolition orders granted against the defendant.
- Legal Topics
- Eviction Orders, Demolition of Structures, Execution of Decree, Succession and Transmission, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Prisila Jesondin Chumo
Plaintiff
Nelly Jebor alias Nelly Chebor
Defendant
Procedural Posture
Notice of Motion / Ruling on Post Judgment Eviction and Demolition Application
Legal Issues
- 1 Whether the plaintiff is entitled to orders of eviction and demolition against the defendant on the suit property.
- 2 Whether the pending objection proceedings in the High Court justify a stay of execution of the decree.
- 3 Whether the defendant has any legal basis to remain on the suit property after judgment and dismissal of stay applications.
Ratio Decidendi
The court found that the applicant obtained a valid judgment and decree for possession of the suit property, with the respondent granted 45 days to vacate. The respondent did not appeal the judgment and her applications for stay of execution were dismissed. The court held that the mere pendency of objection proceedings in the High Court, absent a stay order, does not bar execution of the decree. The court also noted that the interests of the deceased's children had been addressed in the succession proceedings. Accordingly, the court concluded that there was no legal justification for the respondent's continued occupation and allowed the application for eviction and demolition as sought.
Court Disposition
Application allowed; eviction and demolition orders granted against the defendant.
Orders
- An order of eviction is granted ordering the eviction of the respondent from LR Turbo East/Sosiani Block 1 (Sugoi) 12.
- The respondent is ordered to demolish her structures on LR Turbo East/Sosiani Block 1 (Sugoi) 12 within 30 days, failing which the applicant may demolish them at the respondent's cost.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONEMENT AND LAND COURT
AT ELDORET
ELC CASE NO. 113 OF 2016
PRISILA JESONDIN CHUMO................................................................................PLAINTIFF
VERSUS
NELLY JEBOR ALIAS NELLY CHEBOR.........................................................DEFENDANT
RULING
1. This is a ruling in respect of a Notice of Motion dated 15/9/2020 in which the Plaintiff/Applicant seeks orders of eviction and demolition of the Defendant/Respondent’s structures on LR. No. Turbo East/Sosiani Block 1 (Sugoi) 12. (Suit Property).
2. The court delivered a judgment in favour of the Applicant on 17/4/2017. The Respondent was granted 45 days within which she was supposed to move out of the suit property failing which she was to be evicted from the same.
3. The Respondent has since filed two applications seeking to have the execution of the decree stayed but the two applications have been dismissed by the court. The Applicant contends that the Respondent did not prefer any appeal against the judgment and she therefore has no basis for remaining on the suit property.
4. The Respondent opposed the application through a replying affidavit sworn on 19/10/2020. The Respondent contends that she has filed objection proceedings in the High Court in which she is challenging the grant through which the Applicant was registered as owner of the suit property through transmission and that it will therefore be fair that execution be held in abeyance pending the conclusion of the objection proceedings.
5. The Respondent argues that her children will be rendered destitute if she is evicted from the suit property.
6. The Applicant filed written submissions in respect of the application on 20/1/2021. The Respondent was given 14 days from 19/10/2021 within which to file submissions. As at 2/1/2022 when writing this ruling, the Respondent had not filed submissions and if any were filed, they are not in the file.
7. I have considered the Applicant’s application as well as the opposition to the same by the Respondent. I have also considered the submissions by the Applicant. There is no doubt that there is a decree in favour of the Applicant. The Respondent was given 45 days within which to vacate the suit property from 17/4/2017. The court decreed that eviction orders were to issue if she did not vacate the suit property.
8. The Respondent did not prefer any appeal against the judgment. She has unsuccessfully tried to have the execution process stayed. This being the case and the children of the Applicant’s deceased son through Hellen Chepkosgei having been take care of in the High Court succession case, I do not see any reason why the decree should not be executed.
9. I allow the application dated 15/9/2020 in the following terms:-
a.) An order of eviction is hereby granted ordering the eviction of the Respondent from LR Turbo East/ Sosiani Block 1 (Sugoi) 12.
b.) The Respondent is ordered to demolish her structures on LR Turbo East/Sosiani Block 1(Sugoi) 12 within30 days failing which the same shall be demolished by the Applicant at the cost of the Respondent.
c.) If the Respondent does not vacate LR Turbo East/Sosiani Block 1 (Sugoi) 12 within 30 days, eviction and demolition of the structures shall be effected under the supervision of the OCS Turbo Police Station.
d.) The Applicant shall have the costs of this application.
It is so ordered
DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 27TH DAY OF JANUARY 2022.
E. OBAGA
JUDGE
27. 01. 2022
In the virtual absence of parties who were aware of the date of delivery of Ruling.
Court Assistant – Mercy
E. OBAGA
JUDGE
27/1/2022