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ELCAllowed· [2018] KEELC 3272 (KLR)

Edwin G K Thiongo & another v Gichuru Kinuthia & 2 others [2018] KEELC 3272 (KLR)

Environment and Land Court
18 May 2018
BEB M Eboso
665 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed it can enforce Court of Appeal land rulings, and ordered police-supervised eviction of the defendants.

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 Nairobi (B M Eboso J) delivered on 18 May 2018 on a Notice of Motion dated 31 March 2017 by the plaintiffs. The underlying suit had been decided in favour of the defendants by Osiemo J on 14 September 2006, but the Court of Appeal (Shichale, Otieno-Odek and Kantai JJA) allowed the plaintiffs' appeal on 30 October 2015, set aside that judgment, ordered the respondents to vacate land parcels Dagoretti/Thogoto/1191 and Dagoretti/Thogoto/1192 within six months, and directed each party to bear its own costs. A formal extract of the appellate judgment was issued on 16 March 2017. The plaintiffs then moved this court seeking an order of eviction of Gichuru Kinuthia, Patterson Njoroge and John Ngethe Gichuru from the two parcels, with supervision by the OCS Kikuyu Police Station, plus costs. The application was served on the defendants' advocate but was unopposed. The court held that enforcement of Court of Appeal judgments is governed by Section 4 of the Appellate Court Jurisdiction Act, under which such judgments may be executed as if they were High Court judgments, and that the reference to the High Court must be read within the post-2010 constitutional architecture, with the Environment and Land Court as the successor court in land disputes. The application was allowed: the OCS Kikuyu Police Station to oversee enforcement, formal warrants of execution to issue from the ELC Registry, execution to comply strictly with the law, and the defendants to bear the costs of the application.

Key legal issues

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01

Proper forum for enforcement of a Court of Appeal judgment in a land dispute

Holding

The Environment and Land Court is the proper forum, being the successor to the pre-2010 High Court in relation to land disputes under Section 33 of the Sixth Schedule of the Constitution.

Reasoning

Section 4 of the Appellate Court Jurisdiction Act provides that Court of Appeal judgments may be executed as if they were High Court judgments. The reference to the High Court must be construed within the post-2010 court architecture and the constitutional framework on succession of institutions in Section 33 of the Sixth Schedule. In land disputes the successor court is the Environment and Land Court, hence this court is the proper enforcement forum.

p. 2
02

Unopposed application for eviction and execution

Holding

The application was allowed in terms of the orders set out, with the OCS Kikuyu Police Station overseeing enforcement and warrants of execution to issue.

Reasoning

The application was served on the defendants' advocate but no response was filed. In the absence of opposition, the court allowed the application for execution/enforcement of the Court of Appeal judgment, directing supervised enforcement with warrants of execution to issue from the Environment and Land Court Registry in strict compliance with the law.

p. 2

Legal principles established

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  • A judgment of the Court of Appeal may be executed and enforced as if it were a judgment of the High Court.
  • The successor court to the pre-2010 High Court in land disputes is the Environment and Land Court, which is the proper forum to enforce such judgments.

Court orders

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  1. 1.The Police Officer Commanding Kikuyu Police Station shall oversee the plaintiffs' enforcement of the Court of Appeal Judgment dated 30/10/2015 and the formal extracted order issued on 16/3/2017
  2. 2.The Environment and Land Court Registry shall issue formal warrants of execution to appropriate licensed officers of the Court and to the Officer Commanding Kikuyu Police Station authorizing them to execute and/or enforce the judgment/order of the Court of Appeal
  3. 3.Execution shall be carried out in strict compliance with the law
  4. 4.The defendants shall bear costs of the application

Authorities

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Legislation

  • Appellate Court Jurisdiction ActSection 4
  • Constitution of KenyaSection 33 of the Sixth Schedule
On appeal from
Court of Appeal
Not stated in the judgment
Jurisdiction invoked
Section 4 of the Appellate Court Jurisdiction Act; Section 33 of the Sixth Schedule of the Constitution

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, "Edwin G K Thiongo & another v Gichuru Kinuthia & 2 others [2018] KEELC 3272 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3272/eng@2018-05-18

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