[2017] KEELC 2 (KLR)
The court found that the plaintiff had obtained a valid judgment granting the defendants 30 days to vacate the suit property, and that the defendants' application to set aside the judgment had been dismissed on the basis that they were properly served. The court held that the plaintiff was entitled to seek...
Source-derived case information.
- Citation
- [2017] KEELC 2 (KLR)
- Parties
- Plaintiff: Rosah Jepkoech; Defendant: Kennedy Ilavuna Kamusha; Defendant: Aggrey Sakwa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 362 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Enforcement Application Post Judgment
- Outcome
- application allowed
- Legal Topics
- Eviction Orders, Enforcement of Judgments, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosah Jepkoech
Plaintiff
Kennedy Ilavuna Kamusha
Defendant
Aggrey Sakwa
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Enforcement Application Post Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to an order for police assistance in enforcing the eviction decree.
- 2 Whether the defendants were properly served with the decree and related court orders.
Ratio Decidendi
The court found that the plaintiff had obtained a valid judgment granting the defendants 30 days to vacate the suit property, and that the defendants' application to set aside the judgment had been dismissed on the basis that they were properly served. The court held that the plaintiff was entitled to seek enforcement of the decree, including police assistance for eviction, as the time for voluntary compliance had lapsed. The court was not persuaded by the defendants' argument regarding improper service, noting that the issue had already been determined in prior proceedings. Accordingly, the application for police assistance in eviction was allowed, with the court directing that the...
Court Disposition
application allowed
Orders
- The OCS Kabujoi Police Station is directed to assist in the forceful eviction of the defendants from land parcel No Nandi/Kemeloi/1154.
- The eviction shall be conducted during the day and in a humane manner.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT ELDORET
E&L CAUSE NO. 362 OF 2016
ROSAH JEPKOECH........................................................PLAINTIFF
VERSUS
KENNEDY ILAVUNA KAMUSHA.....................1ST DEFENDANT
AGGREY SAKWA................................................2ND DEFENDANT
RULING
This ruling is in respect of an application dated 24th October 2018 brought by way of a notice of motion by the Plaintiff/applicant for orders:
1) Spent.
2) That the court do issue an order directing the OCS Kabujoi Police Station to assist in the forceful eviction of the judgment debtor/respondents herein from land parcel No Nandi/Kemeloi/1154.
3) That costs of this application be provided for.
On the hearing of the application Mr. Amasakha indicated to the court that he had just been instructed to act for the 1st defendant and that he intended to file an application for review of the orders of the court.
Miss Ashitsa for the plaintiff applicant opposed the application as Mr. Kagunza was on record for both the defendants and had filed grounds of opposition to the application. The court ordered that the matter proceeds.
Counsel for the plaintiff/applicant argued the application and urged the court to grant an order directing the OCS Kabujoi Police station to assist with the eviction of the defendants herein. It was Counsel’s submission that the defendant filed an application for stay of execution which was dismissed and that the time limit given to the defendants had lapsed.
Miss Ashista submitted that a party moving the court to enforce a judgment cannot be termed as frivolous or scandalous. That the respondents admitted to having been served with the decree which orders were legally granted by the court. Counsel therefore prayed that the application be allowed.
Mr. Kagunza opposed the application on grounds that the respondents were not personally served as required by law. It was his submission that the 1st respondent works in Nairobi and that there was no proper service. He urged the court to dismiss the application.
Analysis and determination
The plaintiff applicant obtained a judgment dated 14th December 2017 which gave the defendant 30 days within which to vacate failure in default of so vacating an eviction order to issue The defendants filed an application for setting aside judgment which was dismissed as the defendants were properly served with summons to enter appearance.
The plaintiff is in order to ask for assistance in the enforcement of the decree. I find that the application dated 24th October 2018 has merit and is therefore allowed with costs to the applicant. The eviction to be done during the day and in a humanely manner.
Dated and delivered at Eldoret this 13th day of December, 2018.
M.A ODENY
JUDGE
Ruling read in open court in the presence of Mr. Kagunza for defendants and in the absence of Miss Ashitsa for the Plaintiff.
Mr. Koech: Court Assistant