[2013] KEHC 5606 (KLR)
The court found that the consent order for eviction, issued on 2nd February 2011, granted the defendant/applicant the right to forcibly evict the plaintiffs from L.R. No. 209/12223 Nairobi after a 30-day grace period. The plaintiffs failed to vacate the premises within the stipulated period and actively obstructed...
Source-derived case information.
- Citation
- [2013] KEHC 5606 (KLR)
- Parties
- Applicant: Stephen Kimani Karuu t/a Kiriiyu Merchants; Plaintiff: Neno Evangelism Centre Registered Trustees; Plaintiff: Jamaga International Limited; Defendant: The City Council of Nairobi; Defendant: Doshi Cera & Sany Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 271 of 2010
- Procedural Posture
- Notice of Motion / Ruling on Application for Police Assistance to Enforce Eviction Order
- Outcome
- application allowed
- Judges
- MM Gitumbi
- Legal Topics
- Eviction Orders, Enforcement of Court Orders, Police Assistance in Execution, Vacant Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Kimani Karuu t/a Kiriiyu Merchants
Applicant
Neno Evangelism Centre Registered Trustees
Plaintiff
Jamaga International Limited
Plaintiff
The City Council of Nairobi
Defendant
Doshi Cera & Sany Limited
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Police Assistance to Enforce Eviction Order
Legal Issues
- 1 Whether the applicant is entitled to police assistance in enforcing the eviction order against the plaintiffs.
- 2 Whether the plaintiffs' continued occupation after lapse of the 30-day period is lawful.
- 3 Whether the court should grant the orders sought to facilitate peaceful execution of the eviction.
Ratio Decidendi
The court found that the consent order for eviction, issued on 2nd February 2011, granted the defendant/applicant the right to forcibly evict the plaintiffs from L.R. No. 209/12223 Nairobi after a 30-day grace period. The plaintiffs failed to vacate the premises within the stipulated period and actively obstructed the applicant's attempts to execute the order. There being no legal impediment or stay, and the consent order remaining valid and binding, the applicant is entitled to police assistance to ensure peaceful enforcement of the eviction. The court therefore allowed the application, authorizing the relevant police officers to provide security during the eviction process as per the...
Court Disposition
application allowed
Orders
- The Officer Commanding Kamukunji Police Station, Nairobi Area Administration Police, and City Council Police are authorized to provide security to the applicant during the eviction of the plaintiffs from L.R. No. 209/12223 Nairobi as per the consent order dated 3rd February 2011.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ELC. CASE NO. 271 OF 2010
STEPHEN KIMANI KARUU
T/A KIRIIYU MERCHANTS……….……………..…………………..APPLICANT
NENO EVANGELISM CENTRE
REGISTERED TRUSTEES………………………………….…1ST PLAINTIFF
JAMAGA INTERNATIONAL LIMITED…………….…………2ND PLAINTIFF
VERSUS
THE CITY COUNCIL OF NAIROBI…………………..……..1STDEFENDANT
DOSHI CERA & SANY LIMITED …………………..……..2ND DEFENDANT
RULING
Coming up before me for determination is the Notice of Motion dated 5/5/13 brought under Rule 9 (1) (a), (b) and (c) of Auctioneers Rules, Rule 9 (2) of the Auctioneers Rules (Amendment) 2009, Auctioneers Act No. 5 of 1996 and Section 3A of the Civil Procedure Act and all other enabling provisions of law. It is brought by Stephen Kimani Karuu t/a Kiriiyu Merchants and it seeks the following orders:
That this honourable court do order:
The Officer Commanding Kamukunji Police Station
The Officer Commanding Nairobi Area Administration Police
Office Commanding City Council Police
To authorize the officers under their command to escort Stephen Kimani Karuu t/a Kiriiyu Merchants to the premises occupied by Neno Evangelism Centre Registered Trustees for the purpose of maintaining peace and order while the Auctioneer will be evicting the Plaintiff as per the consent order dated 3rd February 2011 on plot No. L. R. No. 209/12223 Nairobi.
That cost be in the cause.
The said application is premised upon the Affidavit of Stephen Kimani Karuu in which he indicated that he is a class “B” Licensed Auctioneer trading under the name and style of Kiriiyu Merchants. He swore that he received instructions on 6/5/13 from Majanja Luseno & Company Advocates to execute orders issued by this Honourable court on 3/2/11. He further swore that upon receiving the said instructions on 7/5/13, he proceeded to the premises situated on plot No. L. R. No. 209/12223 and gave notice of the eviction to the Plaintiff as required by law. He indicated that to date, the Plaintiff has refused to obey the orders issued by the Honourable Court on 3/2/11. He further stated that on 14/5/13 he proceeded to the said premises where the Plaintiff intimidated him and incited his employees and guards not to let him into the premises. He further stated that he requests this Honourable Court to issue orders authorizing the Officers Commanding Kamukunji Police Station, Nairobi Area Administration Police and Officer Commanding City Council Police or any other officers under their command to provide security as he carries out the instructions of evicting the plaintiffs as per the order issued by this court.
I have perused the court record and do confirm that the following order was issued by Justice Mbogholi Msagha on 2nd February 2011:-
“ By consent eviction order to issue and is hereby issued in terms of prayer 1 of the Chamber Summons dated 29/11/2010 (That the Honourable Court be pleased to grant the Defendant/Applicant leave to forcibly evict the Plaintiff from L.R. No. 209/12223 Nairobi). There shall be no eviction until the expiration of thirty (30) days from the date hereof”.
It is noteworthy that Counsel for the 2nd Defendant and for the Plaintiff signed against the consent order.
Clearly, the period of 30 days from 2/2/2011 has long since lapsed yet the Plaintiff is still in occupation of L.R. No. 209/12223 Nairobi. That was the window of opportunity extended to them by this court to grant the Defendant Applicant vacant possession of L.R. No. 209/12223 Nairobi. Failure to vacate the said premises in peace, the Defendant/Applicant became entitled to forcibly evict the Plaintiffs from L.R. No. 209/12223 Nairobi.
In view of the foregoing, I see no impediment to granting the Applicant herein the orders sought by him to enable him to enforce the orders issued by this Court. Accordingly, I hereby allow the application. Costs shall be in the cause.
SIGNED AND DELIVERED AT NAIROBI ON THE 14TH
DAY OF JUNE 2013
MARY M. GITUMBI
JUDGE