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ELCPartially AllowedBungoma ELCC No. 128 of 2014 (O.S)· [2019] KEELC 1438 (KLR)

Levinous Omumalakani v Jane Nasambu & 2 others [2019] KEELC 1438 (KLR)

Environment and Land Court
9 October 2019
BOBoaz N. Olao
673 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court ordered unlawful occupants of private land evicted and their structures demolished, confirming that ignoring a served judgment only delays the inevitable.

What this practically means

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Executive summary

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This was an ex-parte application for execution following judgment in a land dispute. The plaintiff, registered proprietor of LR No. Bungoma/Naitiri/1907, had sued the defendants for vacant possession, a permanent injunction and costs, contending they had unlawfully entered, taken possession and erected structures on his land without consent. The defendants neither entered appearance nor filed a defence. On 13th May 2015 the matter proceeded to formal proof before Mukunya J, who on 23rd June 2015 entered judgment for the plaintiff as claimed and a decree followed. By Notice of Motion dated 20th April 2018, the plaintiff sought orders for demolition of the defendants' structures, their eviction from the suit land, and police security for M/S Eshikhoni Auctioneers during execution, on the ground that the defendants had ignored the served decree for over four years. Though served, the defendants filed no response and the application proceeded ex-parte. Olao J found there was a judgment against the defendants in terms of the plaint, a decree had been issued and served, and no appeal had been lodged against a judgment delivered over four years earlier. Invoking Section 152B of the Land Act 2012, which provides that an unlawful occupant of private, community or public land shall be evicted in accordance with the Act, the court held the defendants were unlawful occupants liable to eviction. The Notice of Motion was allowed in terms of prayers 2, 3 and 4, with the eviction to be carried out under Section 152 of the Land Act. No order was made as to costs.

Key legal issues

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01

Enforcement of an unappealed judgment through eviction and demolition orders

Holding

Where judgment has been entered and the decree served without any appeal, the defendants are unlawful occupants liable to eviction under Section 152B of the Land Act

Reasoning

The court found on the record that judgment was entered against the defendants on 23rd June 2015 as claimed in the plaint, a decree was extracted and served, and the defendants neither appealed nor filed any response to the application. Relying on Section 152B of the Land Act 2012, the court held that the consequence of the judgment is that the defendants' continued occupation is unlawful, entitling the plaintiff to the uncontested orders sought.

p. 2

Legal principles established

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  • An unlawful occupant of private land is liable to be evicted in accordance with the Land Act, 2012

Court orders

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  1. 1.The plaintiff's Notice of Motion is allowed in terms of prayers 2, 3, and 4
  2. 2.An order of demolition of the defendants' buildings and all structures on land parcel NO BUNGOMA/NAITIRI/1907 be issued
  3. 3.An order for eviction of the defendants from the suit land NO BUNGOMA/NAITIRI/1907 be issued
  4. 4.The OCS Mbakalo Police Station or nearest police station to provide M/S Eshikhoni Auctioneers with adequate security while executing the orders
  5. 5.The eviction be carried out as provided for under the relevant provisions of Section 152 of the Land Act

Authorities

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Legislation

  • Land ActSection 152B
  • Land ActSection 152
Jurisdiction invoked
Original jurisdiction over land disputes; execution of decree under Section 152 of the Land Act, 2012

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, "Levinous Omumalakani v Jane Nasambu & 2 others [2019] KEELC 1438 (KLR)", Case Analysis (2019). Bungoma ELCC No. 128 of 2014 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1438/eng@2019-10-09

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