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ELCAllowed· [2019] KEELC 789 (KLR)

Samuel Gikunda v Beatrice Mariam Ismail (sued as the administratix of the estate of Munyua Miguari- deceased) & 7 others [2019] KEELC 789 (KLR)

Environment and Land Court
13 November 2019
LMLucy N. Mbugua
1,131 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 adverse possession case can enforce eviction orders even if the losers file an appeal without seeking a stay.

What this practically means

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Executive summary

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By a judgment dated 23 February 2018 the Environment and Land Court had held that the plaintiff was entitled to two acres of Timau Settlement Scheme/128 by adverse possession, ordered the nullification of the subdivision and a fresh subdivision to facilitate registration of the two acres, now Timau/Timau Settlement Scheme/1831. The plaintiff then moved the court by an application dated 24 May 2019 seeking an order of eviction of the defendants, their agents, servants and anyone claiming under them from the two acres, and an order directing the OCS Timau Police Station to enforce the decree. The 1st Defendant, on behalf of the 2nd to 8th Defendants, opposed the application, arguing that the originating summons never sought eviction, that an appeal (Nyeri Civil Appeal no. 168 of 2018) had been filed, and that eviction would cause them irreparable harm if the appeal succeeded; she also contended the court could not act further on the matter. The 9th Defendant filed grounds of opposition asserting the application was an abuse of process and offended joinder rules. The court framed the issue as whether it had jurisdiction to issue the orders and whether the applicant warranted them. It found the application was meant to implement the judgment; the applicant's adverse possession claim had matured, and the respondents had taken advantage of the subdivision to remove him. No stay of execution had been sought, and the annexed appeal papers lacked even a memorandum of appeal. On joinder, relying on J M K v M W M and Tang Gas Distributors Ltd, the court held Order 1 Rule 10 permits joinder at any stage. The application was allowed with costs to the applicant, paid by the defendants.

Key legal issues

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01

Jurisdiction to order eviction in implementation of an adverse possession judgment

Holding

The application is meant to implement the judgment; eviction is within the court's jurisdiction.

Reasoning

The applicant had matured his adverse possession claim over 2 acres as held in the judgment of 23 February 2018. Although he had been evicted and restricted from farming after the subdivision, his claim had already crystallised. An eviction order merely enforces the decree and allows the applicant to enjoy the fruits of his judgment; no stay of execution had been sought.

p. 2
02

Effect of the pending appeal on enforcement

Holding

A pending appeal without a stay does not bar execution.

Reasoning

The defendants relied on Nyeri Civil Appeal no. 168 of 2018, but the annexed pleadings lacked even a memorandum of appeal, and no application for stay of execution had been filed. Absent a stay, nothing substantial limited the court from granting the prayers sought.

p. 2
03

Joinder objection by the 9th Defendant

Holding

The objection fails; Order 1 Rule 10 empowers the court to order joinder at any stage.

Reasoning

The 9th Defendant argued the application offended joinder rules. The court, applying the Court of Appeal decision in J M K v M W M and Tang Gas Distributors Ltd, held that joinder may be ordered at any stage, even after judgment where nothing more than execution remains, so the objection did not defeat the application.

p. 2

Legal principles established

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  • A party entitled to land by adverse possession should be allowed to enjoy the fruits of his judgment, and a prayer for eviction is within the court's jurisdiction.
  • The court's power under Order 1 Rule 10 of the Civil Procedure Rules to order joinder of a party can be exercised at any stage of the proceedings, including after judgment where damages are yet to be assessed.
  • In the absence of a stay of execution, nothing limits the court from granting enforcement orders on its judgment.

Court orders

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  1. 1.Application dated 24.5.2019 allowed with costs to the applicant, to be paid by the defendants
  2. 2.Order of eviction of the defendants, their agents, servants or anyone claiming under them from the plaintiff's 2 acres in Timau Settlement Scheme/128, now Timau/Timau Settlement Scheme/1831
  3. 3.Order directing the OCS Timau Police Station to enforce the decree and order of the court

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10

Cases cited (2)

  • J M K v M W M & another
    [2015] eKLR
  • TANG GAS DISTRIBUTORS LTD V. SAID & OTHERS
    [2014] EA 448
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act to enforce its own decree in an adverse possession claim; Civil Procedure Rules Order 1 Rule 10 on joinder

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, "Samuel Gikunda v Beatrice Mariam Ismail (sued as the administratix of the estate of Munyua Miguari- deceased) & 7 others [2019] KEELC 789 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/789/eng@2019-11-13

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