[2020] KEELC 1037 (KLR)
The court found that the plaintiff had specifically prayed for eviction in the plaint and that the judgment delivered on 5th December 2019 declared the defendants as trespassers. The eviction order was a logical enforcement of the judgment, and the application for police assistance did not amount to granting ex...
Source-derived case information.
- Citation
- [2020] KEELC 1037 (KLR)
- Parties
- Plaintiff: Samuel Matunde Muchina; Defendant: Samuel Kiptoo Ruto & 9 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 133 of 2014
- Procedural Posture
- Stay Application / Ruling on Application to Set Aside Eviction Order and Stay Execution
- Outcome
- application dismissed with costs
- Judges
- MAO Odeny
- Legal Topics
- Eviction Orders, Trespass to Land, Setting Aside Orders, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Matunde Muchina
Plaintiff
Samuel Kiptoo Ruto & 9 Others
Defendant
Procedural Posture
Stay Application / Ruling on Application to Set Aside Eviction Order and Stay Execution
Legal Issues
- 1 Whether the eviction order issued on 17th June 2020 should be set aside.
- 2 Whether the plaintiff was entitled to the eviction orders granted by the court.
- 3 Whether the defendants were denied an opportunity to be heard before the eviction order was issued.
Ratio Decidendi
The court found that the plaintiff had specifically prayed for eviction in the plaint and that the judgment delivered on 5th December 2019 declared the defendants as trespassers. The eviction order was a logical enforcement of the judgment, and the application for police assistance did not amount to granting ex parte orders or denying the defendants a hearing. The defendants had been given an opportunity to defend themselves but failed to do so, and their advocate participated in the proceedings. The application to set aside the eviction order lacked merit as the orders were properly granted in accordance with the judgment and the law.
Court Disposition
application dismissed with costs
Orders
- The application dated 25th June 2020 is dismissed with costs to the plaintiff/respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT ELDORET
E&L CASE NO. 133 OF 2014
SAMUEL MATUNDE MUCHINA...................PLAINTIFF/RESPONDENT
VS.
SAMUEL KIPTOO RUTO & 9 OTHERS...........................DEFENDANTS
RULING
This ruling is in respect of an application dated 25th June 2020 by the defendant/applicants seeking for the following orders:
a) Spent.
b) That this court be pleased to stay the eviction order issued on 17th June 2020 pending the hearing and final determination of this application inter partes
c) The eviction orders issued on 17th June 2020 be and is hereby set aside.
d) The plaintiff to pay costs of the application.
Counsel agreed to canvass the application by way of written submissions which were duly filed. The applicant has argued that the orders were granted ex parte and the respondent was not given an opportunity to respond. Further that the order of eviction had not been granted in the judgment as it was not prayed for.
Counsel for the respondent opposed the application as it was an abuse of court process and a delaying tactic. That the applicant has filed another case being ELC No. 30 of 2020 to circumvent the cause of justice.
ANALYSIS AND DETERMINATION
This is an application which has been brought by the defendant/applicant who prays that the court sets aside the orders of eviction which are in respect of a judgement of the court. I have considered the submissions by both counsel and find that the issues for determination are as to whether the respondent is entitled to the eviction orders granted by the court.
By a plaint dated 23rd April 2014, the plaintiff/respondent herein sued the defendants for a declaration that the defendants are trespassers on the land parcel known as UASIN GISHU/NDALAT/30 as they have no legally interest coupled with eviction orders of the defendants themselves, their servants and or agents from the land parcel known as UASIN GISHU/NDALAT/30,mesne profits, and damages for trespass to land.
The matter was heard and a judgment delivered on 5th December 2019 whereby the court found that the plaintiff had proved his case partially save for the prayer of mesne profits which is a special damage which must be specifically pleaded and proved. The court further found that the defendants are trespassers and that the plaintiff is entitled to general damages for trespass assessed at Kshs 200,000/
The judgment was very clear and that from the plaint it evident that the plaintiff prayed for eviction and that the court made declaration that the defendants were trespassers. Why would a court issue a declaration that a party is a trespasser then leave the party on the suit land? Would it be worthy going to court to get such orders without enforcement of the declaration? The application by the plaintiff respondent was for enforcement of the judgement seeking for police assistance in the implementation of the order. This does not amount to denying the applicant an opportunity to respond or the orders of eviction being granted ex parte.
This is a matter that had been finalized and it should be noted that the defendants were given an opportunity to defendant themselves in the case but squandered that chance. The advocate on record also told the court that the defendants have not been attending court. The defence case was closed without them giving evidence but their advocate filed submissions in the case and a judgment delivered on 5th December 2019.
I have considered the pleadings, the submissions by counsel and find that the application lacks merit and is therefore dismissed with costs.
DATED and DELIVERED at ELDORET this 22nd DAY OF JULY, 2020
M. A. ODENY
JUDGE