[2021] KEHC 2966 (KLR)
Although the plaintiff has a valid decree entitling him to eviction of the defendants from Nakuru/Municipality Block 22/1719, the court is persuaded that the gravity of the pending criminal proceedings against the plaintiff, which allege forgery in relation to the subject property, warrants a temporary delay in the...
Source-derived case information.
- Citation
- [2021] KEHC 2966 (KLR)
- Parties
- Plaintiff: Samuel Maina Kariuki; Defendant: Angela Kabisa Kabita; Defendant: Joyce Wambuku Ng'ang'a; Defendant: Bonniface Kiratu Njogo; Defendant: Mary Agnes Gathoni Gakuo; Defendant: Vitalis L. Oloo
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 130 of 2010
- Procedural Posture
- Civil Suit / Ruling on Post Judgment Eviction Application
- Outcome
- Status quo to be maintained pending finalization of criminal proceedings; costs in the cause.
- Judges
- RB Ngetich
- Legal Topics
- Eviction Orders, Enforcement of Judgments, Status Quo Orders, Allegations of Forgery
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Maina Kariuki
Plaintiff
Angela Kabisa Kabita
Defendant
Joyce Wambuku Ng'ang'a
Defendant
Bonniface Kiratu Njogo
Defendant
Mary Agnes Gathoni Gakuo
Defendant
Vitalis L. Oloo
Defendant
Procedural Posture
Civil Suit / Ruling on Post Judgment Eviction Application
Legal Issues
- 1 Whether the plaintiff is entitled to eviction orders against the defendants based on the decree issued on 18th October 2017.
- 2 Whether the pending criminal proceedings and allegations of forgery justify delaying the execution of the eviction order.
Ratio Decidendi
Although the plaintiff has a valid decree entitling him to eviction of the defendants from Nakuru/Municipality Block 22/1719, the court is persuaded that the gravity of the pending criminal proceedings against the plaintiff, which allege forgery in relation to the subject property, warrants a temporary delay in the execution of the eviction order. The court exercises its discretion to maintain the status quo until the conclusion of the criminal case, in order to avoid potential injustice and to ensure that the allegations of fraud are properly investigated and determined. The right to enjoy the fruits of judgment is recognized, but must be balanced against the need for fairness and the...
Court Disposition
Status quo to be maintained pending finalization of criminal proceedings; costs in the cause.
Orders
- Status quo to be maintained awaiting finalization of criminal proceedings related to this matter.
- Costs in the cause.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO. 130 OF 2010
SAMUEL MAINA KARIUKI..........................................................................PLAINTIFF
VERSUS
ANGELA KABISA KABITA..................................................................1ST DEFENDANT
JOYCE WAMBUKU NG’ANG’A..........................................................2ND DEFENDANT
BONNIFACE KIRATU NJOGO............................................................3RD DEFENDANT
MARY AGNES GATHONI GAKUO....................................................4TH DEFENDANT
VITALIS L. OLOO..................................................................................5TH DEFENDANT
RULING
1. This is a ruling on the plaintiff’s Notice of Motion dated 15th August 2019 seeking the following orders: -
a. An order for the eviction of the judgment debtor from the land known as, Nakuru/Municipality Block 22/1719 to issue to be executed by Ms. Legacy Auctioneering Services.
b. The Office Commanding Station (OCS) Elementaita Police Station do provide security to Legacy Auctioneering services while undertaking the said auction.
c. The eviction complies with sections 152E and 152G of the land Act.
2. Grounds on the face of this application are that, by a decree dated 18th October 2017, this court made a declaration that the plaintiff is the lawfully registered owner of land known as Nakuru/Municipality Block 22/1719, and further ordered that the defendant be evicted forthwith and the decree has been served upon the judgment debtor but the judgment debtors have refused to vacate the suit land requiring an eviction order which will entail the demolishing of buildings and is likely to cause a breach of peace; that it is prudent that the OCS Elementaita Police Station do provide security at the time of eviction.
3. The applicant averred in the supporting affidavit that the order issued on 18th October 2017 include an order of eviction of the respondents from the suit land and the respondent has been served but has declined to vacate.
4. In response, the defendants filed replying affidavit dated 26th July 2021 sworn by Vitalis L. Oloo. He averred that a petition is pending before this Court after the discovery of new evidence of forgery which led to the prosecution of the plaintiff vide Nakuru Criminal Case No. E1923 of 2021 and it is just and fair that this Court awaits the outcome of the criminal or report from the government analyst confirming the allegations of fraud.
5. The respondents further averred that they stand to suffer prejudice if the eviction orders are granted.
ANALYSIS AND DETERMINATION
6. I have considered averments herein and what I consider to be in issue is whether the applicant is entitled to orders sought. The applicant seeks eviction orders on the strength of the decree of this honorable court issued on 18th October 2019 in Nakuru CACA No. 33 of 2015 where the Court allowed appeal on the following terms: -
a. The judgment and decree of Nakuru HCC No. 130 of 2010 is set aside and reversed and this honorable court finds for the plaintiff as prayed for in the plaint, judgment is entered for the plaintiff against the defendants jointly and severally for-
i. Eviction.
ii. A permanent injunction to restrain the defendant by themselves, their servants and/or agents from entering and/or interfering with the Plaintiff’s quiet enjoyment, or in any way dealing with all that property known as Nakuru Municipality Block 22/1719
iii. Mense profits from 1999 to date.
b. Plaintiff was awarded costs.
7. The fact that a party is entitled to enjoy fruits of successful litigation as was stated in the case of Joseph Nyakundi Orina v Joseph Ambuka [20191 eKLR where Justice Sila Munyao ordered the OCS Bondeni Police Station to provide the court bailiff/auctioneer with a police escort to effect the eviction.He stated that the applicant was entitled to the fruits of the judgment which he would not be able to enjoy if the respondent continued to be in occupation of the suit property.
8. I however note that the respondent has filed a complaint against the applicant alleging that the applicant committed forgery by submitting a forged police abstract and charges have been preferred against the applicant.Attached to the complaint is a copy of a charge sheet in Nakuru Criminal Case No. E1923 of 2021 a matter pending in Court.In light of gravity of the orders of eviction orders which will involve demolishing structures, I am inclined to delay the eviction orders sought herein to allow time for the investigation and conclusion on allegations raised.
9. In the mean time I order status quo be maintained awaiting the outcome of investigations and proceedings related to this matter as indicated in the complaint filed.
10. FINAL ORDERS
1) Status quo to be maintained awaiting finalization of criminal proceedings related to this matter.
2) Costs in the cause.
RULING DATED, SIGNED AND DELIVERED VIA ZOOM AT NAKURU THIS 14TH DAY OF OCTOBER 2021
....................................
RACHEL NGETICH
JUDGE
In the presence of:
Jeniffer - Court Assistant
Mr. Mbiyu for Plaintiff
Chepngetich for Defendants