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ELCAllowedNotice of Motion dated 8th February 2018 in the principal suit arising from plaint dated 12th October 2005· [2018] KEELC 953 (KLR)

David Sironga Ole Tukai v Francis Arap Muge & 2 others [2018] KEELC 953 (KLR)

Environment and Land Court
12 October 2018
DOD. O. Ohungo
951 words in judgment
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The bottom line

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The Environment and Land Court ordered defendants to vacate 150.5 hectares in Narok within 30 days, following a Court of Appeal judgment on ownership.

What this practically means

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Executive summary

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This was an unopposed Notice of Motion dated 8th February 2018 filed by the plaintiff under Sections 1A, 1B and 3A of the Civil Procedure Act, seeking an eviction order directing auctioneers to remove the defendants, their agents, servants and all members of Kapkween Farmers Co-operative Society Limited from land parcel Narok/Cis Mara/Ololulunga/161 (150.5 hectares), with police supervision, and costs. The application was supported by the plaintiff's affidavit showing entitlement to vacant possession pursuant to a judgment of the Court of Appeal delivered on 18th December 2014 in Civil Appeal No. 76 of 2014 (Nairobi), which allowed the appeal, set aside the judgment of Emukule J of 7th June 2013, and substituted an order allowing the plaintiff's suit with costs, whereupon this court issued a decree on the same date. Though served, the defendants did not oppose the application. The court noted that execution must be in strict compliance with the Court of Appeal judgment and, invoking Order 22 rule 18 of the Civil Procedure Rules on notice to a judgment debtor where execution is sought more than one year after the decree, gave the defendants 30 days from service to vacate voluntarily. Failing that, an eviction order was to issue to Jeremiah K. Muchendu t/a Icon Auctioneers, conducted in accordance with section 152G(1)(a), (d) to (i) of the Land Act, 2012, with the Officer Commanding Narok County Police providing security. Costs of the application, the auctioneer's costs and the eviction expenses were awarded to the plaintiff against the defendants.

Key legal issues

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01

Entitlement to eviction order in execution of an appellate decree

Holding

The court granted the eviction orders sought, in terms of the Court of Appeal judgment and the decree issued on 18th December 2014, there being no opposition to the application.

Reasoning

The record showed that the Court of Appeal allowed the appeal, set aside the judgment of Emukule J and substituted an order allowing the plaintiff's suit with costs, and a decree issued on 18th December 2014 entitled the plaintiff to vacant possession. The application was unopposed despite service. The court saw no reason to withhold the orders but confined the eviction to the terms of the appellate judgment.

p. 2
02

Notice to defendants and mode of eviction

Holding

The court directed the defendants to vacate within 30 days of service, failing which eviction would ensue, in compliance with Order 22 rule 18 of the Civil Procedure Rules and section 152G of the Land Act, 2012.

Reasoning

Because the application for execution was made more than one year after the decree, Order 22 rule 18 contemplates notice to the judgment debtor. The court considered it prudent to give the defendants a chance to vacate on their own volition before eviction, and required the eviction to follow the statutory procedure under section 152G(1)(a), (d) to (i) of the Land Act, with police security provided.

p. 2

Legal principles established

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  • Eviction in execution of a decree must be in strict compliance with the judgment being executed, and notice to the judgment debtor is required where execution is sought more than one year after the decree (Order 22 rule 18, Civil Procedure Rules); evictions must comply with section 152G of the Land Act, 2012.

Court orders

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  1. 1.The defendants to vacate from parcel Narok/Cis Mara/Ololulunga/161 (150.5 hectares) in terms of the decree issued herein within 30 days of service of the orders, in default to be evicted
  2. 2.An eviction order be issued to Jeremiah K. Muchendu t/a Icon Auctioneers to evict the defendants, their agents, servants and all members of Kapkween Farmers Co-operative Society Limited from the suit parcel so that vacant possession is delivered to the plaintiff
  3. 3.The eviction to be done in accordance with section 152G(1)(a), (d) to (i) of the Land Act, 2012
  4. 4.The Officer Commanding Narok County Police to provide security during the eviction exercise
  5. 5.Costs of the application, the auctioneer's costs and costs of the eviction to be borne by the defendants

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 22 rule 18
  • Land Act, 2012Section 152G(1)(a), (d) to (i)

Cases cited (1)

  • David Sironga Ole Tukai v Francis Arap Muge & 2 Others
    Civil Appeal No. 76 of 2014 (Nairobi)
On appeal from
Court of Appeal
Civil Appeal No. 76 of 2014 (Nairobi) - David Sironga Ole Tukai v Francis Arap Muge & 2 Others
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David Sironga Ole Tukai v Francis Arap Muge & 2 others [2018] KEELC 953 (KLR)", Case Analysis (2018). Notice of Motion dated 8th February 2018 in the principal suit arising from plaint dated 12th October 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/953/eng@2018-10-12

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