[2020] KEELC 2585 (KLR)
The court found that the Land Registrar and Surveyor executed the court order in the absence of the defendant, thereby denying him the right to be heard. This procedural irregularity contravened the principles of natural justice and the specific court order requiring the presence of both parties during the site...
Source-derived case information.
- Citation
- [2020] KEELC 2585 (KLR)
- Parties
- Plaintiff: Violet Ingado Kimanani; Defendant: Francis Kivati Kadasira
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 18 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Eviction and Demolition Orders
- Outcome
- application dismissed with costs
- Judges
- TM Olando
- Legal Topics
- Eviction Orders, Right to Be Heard, Boundary Disputes, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Violet Ingado Kimanani
Plaintiff
Francis Kivati Kadasira
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Eviction and Demolition Orders
Legal Issues
- 1 Whether the defendant was denied the right to be heard during the execution of the court order by the Land Registrar and Surveyor.
- 2 Whether the plaintiff is entitled to eviction and demolition orders based on the process followed by the Land Registrar and Surveyor.
Ratio Decidendi
The court found that the Land Registrar and Surveyor executed the court order in the absence of the defendant, thereby denying him the right to be heard. This procedural irregularity contravened the principles of natural justice and the specific court order requiring the presence of both parties during the site visit. As a result, the application for eviction and demolition orders was dismissed for lack of procedural fairness. The court directed that the Land Registrar and Surveyor must comply with the original order in the presence of both parties within 30 days, after which the judgment may be implemented as per the relief sought, contingent on proper compliance with due process.
Court Disposition
application dismissed with costs
Orders
- The application for eviction and demolition orders is dismissed with costs.
- The County Land Registrar and Surveyor Vihiga to comply with the court order made on 30/5/2018 within the next 30 days in the presence of both parties.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KISUMU
ELC 18 OF 2017
VIOLET INGADO KIMANANI...............................................PLAINTIFF
VERSUS
FRANCIS KIVATI KADASIRA...........................................DEFENDANT
RULING
Violet Ingado Kimanani the Decree Holder, applicant has come to curt against Francis Kivati Kadasira praying for orders that this Honourable Court be pleased to issue an eviction order for the forceful ejection of the Judgment Debtor/Respondent, his servants, employees, relatives, agents and/or anybody claiming through him from the suit land parcel no. Tiriki/Ttigoi/1286 and the wall erected along the fence of the suit land be demolished. The costs of the demolition of the wall to be borne by the Judgment Debtor/Respondent and that the OCS Gambogi Police Station be ordered to enforce compliance of the orders of the Honourable Court and maintain peace upon eviction.
The application is based on grounds that this court made orders that the Land Registrar and Surveyor Vihiga to visit Land parcel number Tiriki/Tigoi/1286 and confirm its ground boundaries and point them out to parties and that the defendant to vacate at the portion of the suit land that he was in possession. The land Registrar and Land Surveyor Vihiga visited the suit property and executed the order issued by the court.
The Respondent opposes the application on grounds that the respondent was never notified of the visit of the suit land properties by Vihiga County Lands Surveyor and registrar. Accordingly he was not present when the alleged survey was conducted and therefore did not aid in pointing out the alleged boundaries or portions of the land as brought out in the report dated 8/10/2019.
I have considered the application and the reply and do find that it is trite law that before a person is condemned he has to be heard. The right to be heard is candid and cannot be wished away.
The County Land Registrar and County Land Surveyor were to visit the property in the presence of the parties but did so in the absence of the defendant/respondent in disregard of the court order and therefore did not afford him the right to be heard. I do find the application without basis and the same is dismissed with costs.
The County Land Registrar and Surveyor Vihiga to comply with court order made on 30/5/2018 within the next 30 days and thereafter the Judgment to be implemented in terms of relief (b) within 30 days of the surveyor’s report. Orders accordingly.
DATED AND DELIVERED THIS 30 DAY OF APRIL, 2020.
A.O. OMBWAYO
ENVIRONMENT & LAND
JUDGE
This ruling is hereby delivered to the parties by electronic mail due to the measures restricting court operations due to COVID -19 pandemic and in light of directions issued by the Honourable Chief Justice on 15TH March 2019 and with the consent of the parties.
A.O. OMBWAYO
ENVIRONMENT & LAND
JUDGE