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ELCAllowedNotice of Motion dated 13th June 2013 (arising from suit decided by L.J. Rose Ougo, judgment 5th/8th November 2012)· [2014] KEELC 558 (KLR)

Daniel Kimani Mbugua & 3 others v Hannah Mwihaki Kamau [2014] KEELC 558 (KLR)

High Court of Kenya
16 May 2014
MGMary M. Gitumbi
458 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court confirmed that a judgment declaring someone the registered owner of land lets them evict the losing party, with costs against those who refuse to vacate.

What this practically means

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Executive summary

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This ruling by Mary M. Gitumbi J, delivered in Nairobi on 16th May 2014, determined a Notice of Motion dated 13th June 2013 brought by the Judgment Creditor, Hannah Mwihaki Kamau, seeking the eviction of the Respondents (Grace Muthoni Kangethe, Lucy Wanjira, Leonard Kamau Mbugua, Joseph Chege Waceke and John Chege Mbugua) from land parcel KABETE/LOWER KABETE/1799, plus costs. The application was grounded on the assertion that the court, in a judgment delivered by Lady Justice Rose Ougo, had dismissed the Respondents' suit (which claimed the property on the basis of over twelve years' occupation) and that order number 3 of the Decree extracted on 20th February 2013 declared the defendant the registered proprietor entitled to quiet possession. The Judgment Creditor averred the Decree had been served on the Respondents and their advocate, who refused to vacate, their advocate asserting that the judgment did not provide for eviction. The Respondents' advocate filed a replying affidavit opposing the application on the ground that the judgment did not issue a decree capable of execution by the method requested. Only the Judgment Creditor filed written submissions. After studying the judgment and the Decree, the court confirmed the finding that the defendant was the registered proprietor entitled to quiet possession, held that the plaintiffs were bound to vacate to allow the defendant to take possession, allowed the application, and awarded the Judgment Creditor the costs of the application.

Key legal issues

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Executability of the decree for possession

Holding

The court confirmed the finding that the defendant was the registered proprietor entitled to quiet possession, and held the plaintiffs were obliged to vacate, justifying eviction.

Reasoning

The court reviewed the judgment delivered by Lady Justice Rose Ougo and the Decree extracted therefrom dated 20th February 2013. It confirmed that the judge had found the defendant to be the registered proprietor entitled to quiet possession. It reasoned that it followed from that finding that the plaintiffs were supposed to vacate the suit property to allow the defendant to take possession, and accordingly allowed the application for eviction with costs.

p. 3

Legal principles established

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  • Where a judgment declares a registered proprietor entitled to quiet possession, the unsuccessful party is bound to vacate the suit property to allow the proprietor to take possession, and the decree is executable accordingly.

Court orders

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  1. 1.The Judgment Creditor's Application (Notice of Motion dated 13th June 2013) is allowed
  2. 2.The Respondents to be evicted from land parcel KABETE/LOWER KABETE/1799
  3. 3.Costs of the Application awarded to the Judgment Creditor
Jurisdiction invoked
Execution of the Decree extracted from the judgment of the High Court (order number 3 of the Decree dated 20th February 2013); provision not stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Daniel Kimani Mbugua & 3 others v Hannah Mwihaki Kamau [2014] KEELC 558 (KLR)", Case Analysis (2014). Notice of Motion dated 13th June 2013 (arising from suit decided by L.J. Rose Ougo, judgment 5th/8th November 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/558/eng@2014-05-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.