[2024] KEELC 58 (KLR)
The court found that the plaintiff is the registered owner of the suit property, as previously determined by a final judgment and decree. The defendants were served with the requisite three-month eviction notice under Section 152E of the Land Act, and no stay or appeal was filed. The defendants failed to comply with...
Source-derived case information.
- Citation
- [2024] KEELC 58 (KLR)
- Parties
- Plaintiff: Abdi Noor Umar; Defendant: Adan Mamo Elema & 23 others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 29 of 2019
- Procedural Posture
- Environment and Land Case / Ruling on Post Judgment Eviction Application
- Outcome
- Application allowed; eviction order granted against the six remaining defendants.
- Judges
- CK Nzili
- Legal Topics
- Eviction Procedure, Trespass to Land, Execution of Decree, Notice Requirements, Vacant Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdi Noor Umar
Plaintiff
Adan Mamo Elema & 23 others
Defendant
Procedural Posture
Environment and Land Case / Ruling on Post Judgment Eviction Application
Legal Issues
- 1 Whether the defendants' continued occupation of LR No. 11 Checheles Isiolo Township is unlawful post-judgment.
- 2 Whether the statutory requirements for eviction under the Land Act have been met.
- 3 Whether the plaintiff is entitled to an eviction order and enforcement by police supervision.
Ratio Decidendi
The court found that the plaintiff is the registered owner of the suit property, as previously determined by a final judgment and decree. The defendants were served with the requisite three-month eviction notice under Section 152E of the Land Act, and no stay or appeal was filed. The defendants failed to comply with the decree or provide any justification for their continued occupation. The statutory requirements for eviction, including notice and service, were satisfied. The court held that the continued occupation by the six remaining defendants is unlawful, and that the plaintiff is entitled to an eviction order, to be enforced by the OCS Isiolo Police Station. Costs of the eviction...
Court Disposition
Application allowed; eviction order granted against the six remaining defendants.
Orders
- Eviction order issued against the six defendants still occupying LR No. 11 Checheles Isiolo Township.
- Eviction to be supervised by the OCS Isiolo Police Station.
Full Case Text
Judgment text and source record
25 paragraphs
Umar v Elema & 23 others (Environment & Land Case 29 of 2019) [2024] KEELC 58 (KLR) (17 January 2024) (Ruling)
Neutral citation: [2024] KEELC 58 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment & Land Case 29 of 2019
CK Nzili, J
January 17, 2024
Between
Abdi Noor Umar
Plaintiff
and
Adan Mamo Elema & 23 others
Defendant
Ruling
1. By an application dated 5. 10. 2023, the court is asked by the plaintiff/applicant to;-declare that the defendants continued occupation of LR No. 11 Checheles Isiolo Township is unlawful, issue eviction and repossession of the suit premises and the OCS Isiolo Police Station to enforce the said orders.
2. The application is supported by the grounds on the face of the application, supporting and supplementary affidavits sworn by Abdi Noor Umar on 4. 10. 2023 and 25. 10. 2023, respectively. Further, the applicant relies on affidavits of service sworn by Ashaba Mark and Benson M. Murangiri on 15. 6.2023 and 31. 10. 2023 respectively.
3. Briefly, the applicant avers an eviction notice under Section 152 E of the Land Act 2012 dated 15. 6.2023 was served on 15. 6.2023 upon the respondents, namely Samson Namdang Abdikadir Ali, Koricha Abdullahi Guyo, Abdi Rassa Cloto Edome and Nura Diba Bolla who accepted service and expressed intent to vacate but have remained on the land. The applicant avers that out of the 22 defendants, only the 6 respondents have refused to honor the decree or judgment delivered on 28. 9.2022, and since there was no stay of the decree, it was only fair that the orders sought be granted.
4. This court's terms of the decree dated 21. 10. 2022 were that a permanent injunction was issued against the defendants for interfering with LR No. 11 at Checheles Isiolo Township. The plaintiff was also declared a bonafide owner entitled to vacant possession. The defendants were directed to surrender vacant possession and payment of Kenya shillings Ten million as general damages for trespass. This court has not seen a notice of appeal or stay from a superior court against the decree.
5. Further to that, the respondents were served with this application and notice to vacate, going by the affidavit of service by Mr. Ashaba Mark, advocate, sworn on 18. 10. 2023. No replying affidavit was filed to justify non-compliance with the decree or the notice. There is no dispute that the decree-holder is the registered owner of LR No. Isiolo/Block 2/11 situated in Isiolo Township as per the certificate of lease marked as annexure ANN "3" to the supporting affidavit.
6. The eviction process statutorily requires issuing a notice of 3 months to the illegal occupants who, under Section 152 of the Land Act, may move the court for relief. Once such an application is made, the court may confirm, vary or suspend or make additions to the notice as it deems equitable and just. Section 152A of the Land Act makes it illegal to unlawfully occupy private, community or public land. In carrying out an eviction, under Section 152 G (a) to (i) of the Land Act, there are mandatory requirements, including identification of those carrying out the eviction, presentation of an eviction order, respect for the dignity and the right to life and security of those affected, and the presence of government officials.
7. In this matter, the court found the defendants as illegal occupiers of the suit land. As per Regulation 65 of Legal Notice No. 289 of 2017, Form No. LA 57, in the 3rd Schedule the applicant, has issued a notice dated 15. 6.2022. The notice was copied to the DCC Isiolo County, OCS Isiolo Police Station and the area chief.
8. In Atik Mohammed Omar Atik & others v. Joseph Katana & another (2019) eKLR, the court said the first step is to give a mandatory notice of not less than three months before the intended eviction day. In Julius Marten v Caleb Arap Rotich (2021) eKLR, the court said before issuance of an eviction notice, the court must be satisfied on its merits that there is no dispute as to whether ownership of the occupation is illegal and that there is an order capable of execution. See Muthithi Investments Ltd v. Andrews s. Kyendo & others (2020) eKLR, Benjamin Kimeli Tanui v Omari Salim Nasib & another (2020) eKLR, Salome Naliaka Wabwile v Alfred Okumu Musinaka (2020) eKLR and Mary Wangui Karanja & another v Rhoda Wairimu Karanja & another (2021) eKLR.
9. Having looked at the judgment and the events following its delivery, I think the respondents have shown no justification for not complying with the court's decree. I find the application with merit guided by the reasoning in the cited case law. The decree was issued over a year ago. Notice of three months has been effected. Court decrees are not made in vain. The issue of ownership of the suit was finally determined. Vacant possession was decreed to the plaintiff.
10. An eviction order is now issued against the six defendants still occupying the land to be supervised by the OCS Isiolo police station. Costs of the same are to be borne by the six defendants.Orders accordingly.
DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 17TH DAY OF JANUARY 2024In presence of:-C.A Kananu/MukamiPlaintiffAshava for applicantHON. CK NZILIJUDGE