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ELCPartially AllowedNotice of Motion dated 6th May, 2015 in Naromoru ELC Suit (suit over LR No. Naromoru/Naromoru/Block1/51)· [2015] KEELC 246 (KLR)

Mary Wamuyu Mwangi v Joseph Kahara Thinwa (Environment & Land Case Case149 of 2013) [2015] KEELC 246 (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 court gave a losing land occupier six months, not three years, to vacate — 'forthwith' means reasonable time, not instantly.

What this practically means

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Executive summary

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On 16th April 2015 the Environment and Land Court at Nyeri entered judgment for the plaintiff in a claim for a declaration that the defendant was unlawfully occupying LR No. Naromoru/Naromoru/Block1/51, a permanent injunction and an order to vacate forthwith. The defendant then moved the court by Notice of Motion dated 6th May 2015 seeking at least three years to vacate, citing developments on the land since 1979, including a five-roomed family home, electricity, piped water and the graves of relatives requiring relocation. The plaintiff opposed, contending the defendant owned adjacent land (Naromoru/Naromoru/52), had known since 2014 of his wrongful occupation, that the structures were semi-permanent, and that she had already suffered over 35 years of exclusion from her land. She further argued the court had become functus officio upon delivery of judgment, relying on Order 21 Rule 3 of the Civil Procedure Rules. The court, Waithaka J, held that the application did not seek to alter the judgment or decree, since the judgment fixed no time for vacating and 'forthwith' may mean within a reasonable time rather than instantly. Invoking the inherent jurisdiction under Section 3A of the Civil Procedure Act, the court found the defendant had made out a case for extension of time but allowed six months rather than the three years sought. The application was allowed to that extent; no costs order was recorded.

Key legal issues

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01

Whether the court was functus officio after delivering judgment

Holding

The application did not alter the judgment or decree; granting time to vacate does not interfere with the judgment, so functus officio did not bar the application

Reasoning

The plaintiff argued under Order 21 Rule 3 that judgment once signed cannot be altered. The court held that the judgment directed the defendant to vacate forthwith but did not fix a time; specifying a reasonable period merely implements, and does not alter, the judgment. Section 3A confers power to make orders necessary for the ends of justice.

p. 3
02

Whether the defendant deserved an extension of time and how much

Holding

Yes; six months allowed instead of the three years sought

Reasoning

It was not disputed that the defendant needed time to remove developments including relocating relatives' graves. The court was satisfied he made out a case for extension but found the plaintiff's evidence that structures were semi-permanent persuasive, holding six months sufficient rather than the requested three years.

p. 3

Legal principles established

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  • A direction to vacate 'forthwith' does not mean instantly but within a reasonable time, and the court retains inherent power under Section 3A of the Civil Procedure Act to specify a reasonable period for compliance with its judgment

Court orders

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

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 Case149 of 2013) [2015] KEELC 246 (KLR)", Case Analysis (2015). Notice of Motion dated 6th May, 2015 in Naromoru ELC Suit (suit over LR No. Naromoru/Naromoru/Block1/51). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/246/eng@2015-10-22

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