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ELCPartially AllowedApplication dated 4 April 2019 (arising from appeal from Nyahururu CMCC suit No. of 2001)· [2019] KEELC 2011 (KLR)

Alex Kihonge Mukoma v Joseph Ngugi Mburu & 2 others [2019] KEELC 2011 (KLR)

Environment & Land Court at Nakuru
10 July 2019
548 words in judgment
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The bottom line

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Kenya's Environment and Land Court ordered two respondents evicted from land they had refused to vacate, and made them pay all eviction costs.

What this practically means

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Executive summary

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This was an unopposed application dated 4 April 2019 in the Environment and Land Court at Nakuru, filed by the appellant following the court's judgment of 3 May 2018 in an appeal from the Chief Magistrate's Court at Nyahururu. The underlying dispute originated in 2001, in which the applicant claimed ownership of Plots Nos. 136 and 137 Kangui Township and alleged trespass by the respondents in 1996. The respondents claimed to own separate plots K17 to K24. The applicant's suit in the Magistrate's Court was dismissed, but on appeal, Justice Munyao Sila found on 3 May 2018 that the 2nd and 3rd respondents' plots K17 to K20 had encroached on Plots 136 and 137 by about 8 meters, and gave them 30 days to remove their structures and give vacant possession. In the present application the applicant complained that the respondents had declined to vacate despite notice. The respondents, though served, filed nothing in response. The court found the applicant's assertions unchallenged and granted orders of eviction against the 2nd and 3rd respondents from Nyandarua/Kangui Township/136 and 137, directed the applicant to appoint an auctioneer or court broker to execute the order, and ordered the OCS Ol Joro Orok to provide the requisite security. The costs of the application and of the eviction were awarded against the 2nd and 3rd respondents. The application was allowed with costs.

Key legal issues

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01

Whether eviction orders should issue following an unopposed application for execution of judgment

Holding

The court issued eviction orders against the 2nd and 3rd respondents, who had declined to vacate despite judgment and notice

Reasoning

The respondents were served with the motion but filed no response. The court found the applicant's assertion that they refused to vacate unchallenged. To enable the applicant enjoy the fruits of the judgment, eviction orders were granted, with the applicant to appoint an auctioneer or court broker and the OCS Ol Joro Orok to provide security.

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02

Whether police security and costs of eviction should be granted

Holding

The OCS Ol Joro Orok was directed to provide security and the 2nd and 3rd respondents were to bear the costs of the application and eviction

Reasoning

The applicant sought security during execution and costs from the respondents. Since the application was unopposed and the respondents had defied the earlier judgment, the court directed police assistance for a successful exercise and made the respondents liable for the costs.

p. 1

Legal principles established

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  • A successful litigant is entitled to the enjoyment of the fruits of his judgment through execution
  • Unchallenged, uncontroverted evidence stands unopposed and may be acted upon

Court orders

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  1. 1.Orders of eviction issued against the 2nd and 3rd respondents from land parcels Nyandarua/Kangui Township/136 and 137
  2. 2.The applicant directed to appoint an auctioneer or court broker to execute the order of eviction
  3. 3.The OCS Ol Joro Orok ordered to provide requisite security for the eviction exercise
  4. 4.Costs of the application and costs of eviction awarded against the 2nd and 3rd respondents
On appeal from
Chief Magistrate's Court at Nyahururu
Suit commenced in 2001 (CMCC Nyahururu)
Jurisdiction invoked
First-instance application for execution of the court's own judgment of 3 May 2018 in an appeal from the Chief Magistrate's Court, Nyahururu

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, "Alex Kihonge Mukoma v Joseph Ngugi Mburu & 2 others [2019] KEELC 2011 (KLR)", Case Analysis (2019). Application dated 4 April 2019 (arising from appeal from Nyahururu CMCC suit No. of 2001). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2011/eng@2019-07-10

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