[2018] KEELC 4837 (KLR)
The court found that the 1st and 2nd defendants failed to pay the sum of Kshs. 18,500,000/- to the plaintiff within the 90-day period stipulated in the consent decree. This default triggered the provision requiring them to vacate and hand over possession of the suit property to the plaintiff. The application for...
Source-derived case information.
- Citation
- [2018] KEELC 4837 (KLR)
- Parties
- Plaintiff: Teresia Njeri Mwangi (Suing as the legal representative of the estate of Stephen Mwangi Maina (deceased)); Defendant: Shanji Shamji Hirji; Defendant: Hirji Premji Triji Rajan Ranjani; Defendant: District Land Registrar Thika; Defendant: I&M Bank Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1198 of 2013
- Procedural Posture
- Notice of Motion / Ruling on Post Judgment Enforcement Application
- Outcome
- application allowed in part
- Legal Topics
- Eviction, Consent Judgment, Specific Performance, Injunctions, Title Cancellation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresia Njeri Mwangi (Suing as the legal representative of the estate of Stephen Mwangi Maina (deceased))
Plaintiff
Shanji Shamji Hirji
Defendant
Hirji Premji Triji Rajan Ranjani
Defendant
District Land Registrar Thika
Defendant
I&M Bank Limited
Defendant
Procedural Posture
Notice of Motion / Ruling on Post Judgment Enforcement Application
Legal Issues
- 1 Whether the 1st and 2nd defendants defaulted in payment of Kshs. 18,500,000/- to the plaintiff as per the consent decree.
- 2 Whether the plaintiff is entitled to an order of eviction against the 1st and 2nd defendants for non-payment.
- 3 Whether the plaintiff is entitled to a permanent injunction against the 1st and 2nd defendants.
Ratio Decidendi
The court found that the 1st and 2nd defendants failed to pay the sum of Kshs. 18,500,000/- to the plaintiff within the 90-day period stipulated in the consent decree. This default triggered the provision requiring them to vacate and hand over possession of the suit property to the plaintiff. The application for eviction was unopposed, and the factual averments of default were uncontested. The court held that the plaintiff was entitled to enforcement of the consent decree through eviction and police assistance. However, the court declined to grant a permanent injunction, noting that such relief was not part of the original consent decree and lacked an independent basis. The court thus...
Court Disposition
application allowed in part
Orders
- The 1st and 2nd defendants shall be evicted from property known as Ruiru Kiu Block 2/3627.
- The O.C.S Ruiru Police Station shall supervise the eviction of the 1st and 2nd defendants from the suit property.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC SUIT NO. 1198 OF 2013
TERESIA NJERI MWANGI (Suing as the legal representative of the estate
ofSTEPHEN MWANGI MAINA(deceased)……………………….....PLAINTIFF
VERSUS
SHANJI SHAMJI HIRJI................................................................1STDEFENDANT
HIRJI PREMJI TRIJI RAJAN RANJANI…...............................2ND DEFENDANT
DISTRICT LAND REGISTRAR THIKA......................................3RD DEFENDANT
I&M BANK LIMITED…...............................................................4TH DEFENDANT
RULING
On 17th May, 2017, the parties herein filed in court a consent letter dated 9th May, 2017 compromising this suit on the terms that were contained in the said letter. On the same day, the parties appeared before Gitumbi J. who adopted the said consent as an order of the court. On 30th May, 2017, a decree was extracted and issued in accordance with the terms of the said consent. The decree provided among others that:
1. Upon payment of Kshs. 18,500,000/- to the plaintiff by the 1st and 2nd defendants jointly and severally, the plaintiff was to relinquish all claims whatsoever on property known as Ruiru Kiu Block 2/3627(suit property), which property was to become fully vested and for all purposes owned by the 1st and 2nd defendants and the suit herein between the plaintiff and the 1st and 2nd defendants was to stand fully settled.
2. The said sum of Kshs. 18,500,000/- was to be paid by the 1st and 2nd defendants within 90 days of the date of the consent and in default, the 1st and 2nd defendants were to forthwith vacate the suit property and the duplicate title issued in their joint names was to stand revoked and/or cancelled.
What is now before me is the plaintiff’s Notice of Motion application dated 29th September, 2017 seeking; an order for the eviction of the 1st and 2nd defendants from the suit property; an order that the O.C.S Ruiru Police Station does supervise the eviction of the 1st and 2nd defendants and a permanent injunction restraining the 1st and 2nd defendants from interfering or in any way dealing with the suit property. The application was brought on the grounds that the 1st and 2nd defendants have defaulted in the payment of the said sum of Kshs. 18,500,000/-to the plaintiff and as such they are under obligation under the decree issued on 30th May, 2017 to deliver vacant possession of the suit property.
The application was served upon the advocates for the 1st and 2nd defendants and the 4th defendant and no response was filed in opposition to the same. The defendants did not also attend court on 18th December, 2017 when the application came up for hearing. I have considered the application together with the affidavit filed in support thereof. I am satisfied that the application has merit. The decree issued herein on 30th May, 2017 required the 1st and 2nd defendants to pay to the plaintiff a sum of Kshs. 18,500,000/- within 90 days from 17th May, 2017 in default of which they were to vacate and handover the suit property to the plaintiff. As I have stated above, the plaintiff’s application was not opposed. The averment in the application that the 1st and 2nd defendants have defaulted in the payment of the said sum of Kshs. 18,500,000/- has not been controverted. I am of the view that the event that was to trigger the handing over of possession of the suit property by the 1st and 2nd defendants to the plaintiff having occurred, the plaintiff’s prayer for the eviction of the 1st and 2nd defendants who have remained in possession of the suit property cannot be resisted. A part from the order of eviction, the plaintiff had also sought an order of injunction against the 1st and 2nd defendants. I have noted that an order of injunction was not granted to the plaintiff in the consent decree. The plaintiff’s prayer for injunction has no basis in the circumstances. The plaintiff had a further prayer for police assistance during the eviction exercise which I think is in order.
For the reasons given above, the plaintiff’s application dated 29th September, 2017 succeeds in part. The application is allowed in terms of prayers 1, 2 and 4 thereof.
Delivered and Signed at Nairobi this 19thday of January, 2018
S. OKONG’O
JUDGE
Ruling read in open court in the presence of:
Mr. Harris h/b for Mr. Njonjo for the Plaintiff
N/A for the 1st and 2ndDefendants
N/A for the 3rd Defendant
N/A for the 4th Defendant
Catherine Court Assistant