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ELCPartially AllowedNyeri ELC Case (as per judgment; Notice of Motion dated 6th May 2015 in the suit)· [2015] KEELC 189 (KLR)

Mary Wamuyu Mwangi v Joseph Kahara Thinwa (Environment & Land Case 149 of 2013) [2015] KEELC 189 (KLR)

Environment and Land Court
22 September 2015
LWL N Waithaka
1,416 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court gave a losing occupant six months—not three years—to vacate after losing his case, ruling 'forthwith' means a reasonable time.

What this practically means

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Executive summary

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On 16th April 2015 the court entered judgment for the plaintiff in terms of prayer (1) of the plaint, declaring the defendant's entry and occupation of LR No. Naromoru/Naromoru/Block1/51 unlawful and ordering him to vacate forthwith, with a permanent injunction. The defendant then filed a Notice of Motion dated 6th May 2015 seeking at least three years within which to vacate, citing massive developments including a five-roomed house, electricity, piped water and the graves of his relatives interred on the land, which he needed time to relocate. The plaintiff opposed, arguing the court had become functus officio upon delivering judgment, that the developments were semi-permanent and removable quickly, that the defendant owned adjacent land (Naromoru/Naromoru/52), and that she had been denied use of her land for over 35 years. The court held that the application did not seek to alter the judgment: the decree required vacation 'forthwith', which in the circumstances meant within a reasonable time, not instantly, so the functus officio objection failed. Relying on Section 3A of the Civil Procedure Act, the court found the sole issue to be whether the defendant deserved the time sought. Accepting that the defendant undisputedly needed time to remove developments and relocate graves, the court allowed the application in part, granting six months rather than the three years sought. The ruling was delivered at Nyeri on 22nd September 2015 by L N Waithaka, J. No costs order was stated in the judgment.

Key legal issues

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01

Functus officio / alteration of judgment

Holding

The application does not seek to alter the judgment; granting time to vacate is not an alteration of the decree, so the functus officio objection fails

Reasoning

The judgment required the defendant to vacate forthwith but did not fix a specific time. Since 'forthwith' can mean within a reasonable time, allowing the defendant a defined period does not alter or add to the judgment in breach of Order 21 Rule 3 or Section 99 CPA. The application merely operationalises the existing decree.

p. 3
02

Whether extension of time to vacate should be granted and for how long

Holding

Extension granted, but for six months only rather than the three years sought

Reasoning

It was undisputed that the defendant effected developments including a house, graves, water and electricity, and needs time to remove them and relocate relatives' remains. The plaintiff herself acknowledged some time was needed. Balancing the circumstances, the court was satisfied the defendant made out a case for extension but limited it to six months.

p. 3

Legal principles established

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  • Where a judgment requires a defendant to vacate 'forthwith' without specifying time, 'forthwith' means within a reasonable time, not instantly
  • Under Section 3A of the Civil Procedure Act the court has inherent power to make orders necessary for the ends of justice, including extending time to vacate

Court orders

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  1. 1.The defendant's Notice of Motion dated 6th May 2015 allowed to the extent that the defendant is granted six (6) months within which to vacate LR No. Naromoru/Naromoru/Block1/51
  2. 2.Application otherwise disallowed (the three years sought not granted)

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 21 Rule 3
  • Civil Procedure ActSection 99
Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent power to make orders necessary for the ends of justice)

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, "Mary Wamuyu Mwangi v Joseph Kahara Thinwa (Environment & Land Case 149 of 2013) [2015] KEELC 189 (KLR)", Case Analysis (2015). Nyeri ELC Case (as per judgment; Notice of Motion dated 6th May 2015 in the suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/189/eng@2015-09-22

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