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ELCAllowedNotice of Motion dated 13th July, 2017· [2017] KEELC 1482 (KLR)

Moses Maina Kimondo v Elihah Waweru Kimondo [2017] KEELC 1482 (KLR)

Environment and Land Court
27 September 2017
LWL N Waithaka
326 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If you ignore a Kenyan court order to vacate land within the deadline, the court can send a licensed auctioneer to evict you.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 13th July, 2017 seeking enforcement of an eviction judgment delivered by the Environment and Land Court at Nyeri on 28th March, 2017. In the underlying judgment the court had allowed the applicant's suit for eviction of the respondent from L.R No. Ruguru/Kiamanga/11/29 if the defendant failed to vacate within 60 days. The applicant applied for enforcement on the grounds that the respondent had refused to vacate and had been issuing death threats to the applicant and his family, and sought that the eviction be carried out by Richard Njoroge Wachira trading as Green Bells Auctioneers to ensure peace prevailed. On the hearing date of 26th July 2017, the applicant proved service of the application on the respondent by Simon Ndirangu Ndumia, a licensed process server, on 20th July 2017, supported by an affidavit of service sworn the same day; the respondent accepted service but declined to sign the process server's copy. The respondent filed no response and did not attend court, and was unrepresented at the delivery of the ruling. The court observed that both parties had been present when the judgment was delivered and that the orders were clear that the defendant would be evicted if he failed or refused to vacate within 60 days. Having failed to vacate as ordered, the respondent's eviction was sanctioned. The court granted prayers 2 and 3 of the motion as sought. The ruling was delivered in open court at Nyeri on 27th September, 2017 by L N Waithaka, Judge. No costs order was recorded and no authorities or statutes were cited.

Key legal issues

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01

Enforcement of a prior eviction judgment

Holding

The court granted the enforcement application where the respondent failed to comply with the 60-day vacate order issued in the judgment of 28th March, 2017.

Reasoning

The judgment of 28th March, 2017 allowed the applicant's suit for eviction on condition that the defendant vacate within 60 days. The applicant demonstrated that the respondent had refused to vacate and had been issuing death threats. Service of the application was proved by affidavit of a licensed process server, the respondent having accepted service but declined to sign. With no response filed and no appearance by the respondent, the court granted prayers 2 and 3, directing that eviction be carried out by a named auctioneer to ensure peace.

p. 2
02

Service of the application

Holding

Service on the respondent was properly effected by a licensed process server, evidenced by an affidavit of service sworn on 20th July, 2017.

Reasoning

The applicant informed the court that the respondent was served by Simon Ndirangu Ndumia, a licensed process server, on 20th July 2017; the respondent accepted service but declined to sign the process server's copy. An affidavit of service was filed in support. The respondent neither responded to the application nor attended court, and the court proceeded unopposed.

p. 2

Legal principles established

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  • A party ordered to vacate suit property within a fixed period who fails to do so may be evicted in enforcement of the judgment, and the eviction may be executed by an auctioneer named by the court to ensure peace prevails.

Court orders

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  1. 1.Prayers 2 and 3 of the Notice of Motion dated 13th July, 2017 granted as sought
  2. 2.Eviction of the respondent from L.R No. Ruguru/Kiamanga/11/29 to be carried out by Richard Njoroge Wachira trading as Green Bells Auctioneers
Jurisdiction invoked
Enforcement of the court's own judgment delivered on 28th March, 2017

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, "Moses Maina Kimondo v Elihah Waweru Kimondo [2017] KEELC 1482 (KLR)", Case Analysis (2017). Notice of Motion dated 13th July, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1482/eng@2017-09-27

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