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ELCAllowedNotice of Motion dated 24th October 2018 (suit over land parcel No. Nandi/Kemeloi/1154)· [2017] KEELC 2 (KLR)

Rosah Jepkoech v Kennedy Ilavuna Kamusha & another [2017] KEELC 2 (KLR)

Environment and Land Court
13 December 2018
MOM. A. Odeny
440 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who wins an eviction case can ask the court to order police help to remove people who refuse to leave.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret (M. A. Odeny, J) on a notice of motion dated 24th October 2018 by the plaintiff seeking an order directing the OCS Kabujoi Police Station to assist in the forceful eviction of the defendants (judgment debtors) from land parcel No. Nandi/Kemeloi/1154, with costs. The plaintiff had earlier obtained a judgment dated 14th December 2017 requiring the defendants to vacate within 30 days, failing which an eviction order would issue. The defendants' application to set aside the judgment was dismissed, the court having found they were properly served with summons to enter appearance; their application for stay of execution was likewise dismissed and the time limit to vacate had lapsed. In opposing the application, Mr. Kagunza for the defendants argued that the respondents were not personally served as required by law, noting the 1st respondent works in Nairobi, and urged dismissal. Miss Ashitsa for the plaintiff submitted that a party moving the court to enforce a judgment cannot be termed frivolous or scandalous, and that the defendants admitted service of the decree. The court held the plaintiff entitled to assistance in enforcing the decree, allowed the application with costs, ordered the OCS Kabujoi Police Station to assist with the forceful eviction, and directed that the eviction be carried out during the day and in a humane manner.

Key legal issues

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01

Whether the applicant is entitled to an order for police assistance to enforce an eviction decree

Holding

The application is allowed; the OCS Kabujoi Police Station to assist in forceful eviction, conducted during the day and humanely.

Reasoning

The plaintiff had obtained a judgment dated 14th December 2017 giving the defendants 30 days to vacate, failing which an eviction order would issue. The defendants' application to set aside that judgment was dismissed, they having been properly served with summons. Their application for stay of execution was also dismissed and the time limit to vacate had lapsed. Enforcement of a judgment is neither frivolous nor scandalous, so the plaintiff is entitled to assistance in enforcing the decree.

p. 1

Legal principles established

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  • A party seeking to enforce a lawful decree is entitled to the court's assistance in executing it, including police assistance for eviction.

Court orders

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  1. 1.Application dated 24th October 2018 allowed
  2. 2.Order directing the OCS Kabujoi Police Station to assist in the forceful eviction of the defendants/judgment debtors from land parcel No. Nandi/Kemeloi/1154
  3. 3.Eviction to be done during the day and in a humane manner
  4. 4.Costs of the application to the applicant
Jurisdiction invoked
Enforcement of a decree of the court (civil procedure enforcement powers); no specific constitutional/statutory article cited in the ruling

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, "Rosah Jepkoech v Kennedy Ilavuna Kamusha & another [2017] KEELC 2 (KLR)", Case Analysis (2018). Notice of Motion dated 24th October 2018 (suit over land parcel No. Nandi/Kemeloi/1154). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2/eng@2017-12-13

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