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ELCStruck OutKitale ELC No. 19 of 2013· [2019] KEELC 316 (KLR)

Joseph Muchoe Wanyama (Suing for and on behalf of Members of Yuya Farmers Co-operative Society Ltd v Mercia Muliro (Suing as personal representative of Masinde Muliro (Deceased) [2019] KEELC 316 (KLR)

Environment and Land Court
9 December 2019
MNMwangi Njoroge
1,005 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kitale struck out an eviction application because it was filed in the wrong case file, not where the decree existed.

What this practically means

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Executive summary

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The plaintiff in Kitale ELC No. 19 of 2013 applied by notice of motion dated 25/7/2019 for an order authorizing the OCPD Kachibora Police Station to evict any person found on LR 11209 Sibanga Farm in enforcement of the decree in Kitale SPMCC Land Case No. 12 of 2000, in which judgment was entered on 23/2/2000 ordering Mercia Muliro to give members of Yuya Co-op Society 201.7 acres or alternatively Kshs. 490,000 with interest. The defendant, Mukasa Mwambu Muliro, administrator of the estate of Mercia Muliro, opposed the application as fatally defective, misconceived and statute-barred, arguing that the estates of Mercia Muliro and Masinde Muliro are distinct, that this suit was dismissed on 20/2/2014 and the ensuing appeal abated, and that the 2000 decree is unenforceable. The court examined the record and found that this suit, formerly Eldoret High Court Civil Case No. 38 of 2007 and transferred by Munyao J, was dismissed with costs by Obaga J on 20/2/2014, and that Kitale SPMCC Land Case No. 12 of 2000 was not among the suits consolidated by the consent order of 30/4/2013. The application was therefore an application for execution of a decree in a different file and should have been lodged in that file; further, the prayers did not accord with the decree in the present suit. The court struck out the application as incompetent with no orders as to costs.

Key legal issues

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Whether an eviction order enforcing the decree in Kitale SPMCC Land Case No. 12 of 2000 could issue in Kitale ELC No. 19 of 2013

Holding

The application was incompetent because it sought execution of a decree from a different case and did not accord with the decree in the present suit

Reasoning

The court traced the file and found this suit (formerly Eldoret High Court Civil Case No. 38 of 2007) was dismissed on 20/2/2014 by Obaga J, and that the consent order of 30/4/2013 consolidating several suits did not include Kitale SPMCC Land Case No. 12 of 2000. Execution applications must be made in the file containing the decree sought to be enforced, and the prayers here conflicted with the more recent dismissal judgment in this file.

p. 2

Legal principles established

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  • An application to execute a decree must be filed in the file record of the case in which that decree was issued

Court orders

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  1. 1.The application dated 25/7/2019 is struck out
  2. 2.No orders as to costs

Authorities

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Legislation

  • Limitation of Actions Act
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land matters

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, "Joseph Muchoe Wanyama (Suing for and on behalf of Members of Yuya Farmers Co-operative Society Ltd v Mercia Muliro (Suing as personal representative of Masinde Muliro (Deceased) [2019] KEELC 316 (KLR)", Case Analysis (2019). Kitale ELC No. 19 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/316/eng@2019-12-09

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