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ELCDismissedNot stated in judgment· [2019] KEELC 4476 (KLR)

James Mathuva Makewa v Nzavi Ngului [2019] KEELC 4476 (KLR)

Environment and Land Court
25 February 2019
1,219 words in judgment
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The bottom line

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A Makueni court refused to evict a land occupier because eviction was never requested in the original lawsuit, even though the owner had won the case.

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 Makueni on the Plaintiff's Notice of Motion dated 16th August 2018, brought under Sections 1A, 1B, 3A and 38 of the Civil Procedure Act and Order 22 of the Civil Procedure Rules, seeking immediate eviction of the Defendant from LR No. Makueni/Nguu/1283 (formerly Plot No. 464/1283 Nguu Settlement Scheme), execution by Kiriiyu Merchants Auctioneers with police supervision, and costs. The Defendant objected, arguing eviction was never sought in the plaint, the decree did not conform to the judgment under Order 21 Rule 7, and the property descriptions in the judgment and title differed. The Plaintiff's counsel argued the judgment of 19th July 2018 was clear and the Defendant's continued occupation was contempt of the decree, relying on the Court of Appeal decision in Gulam Miriam Noordin v Julius Charo Karisa. The court framed two issues: whether the Plaintiff deserved eviction or vacant possession, and whether the correct procedure was used. It found that the two parcel descriptions referred to one and the same land, but that eviction was not a prayer in either the plaint or the amended plaint, so the applicant sought to enforce relief not contained in the decree. Although Order 21 Rule 7(1) is mandatory, procedural technicalities could not supply the missing relief. The application was dismissed with costs to the Defendant. Mbogo C.G., J delivered the sole judgment on 25th February 2019.

Key legal issues

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01

Whether eviction orders could be granted where eviction was not a prayer in the plaint

Holding

Eviction cannot be granted because it was neither sought in the plaint nor in the amended plaint, and the decree does not contain such relief

Reasoning

The court noted that although plot 464/1283 Nguu Settlement Scheme and parcel Makueni/Nguu/Ranch/1283 refer to the same land, the plaint dated 26th March 2003 and the amended plaint dated 10th May 2007 did not include eviction as a prayer. Granting eviction would amount to enforcing relief outside the judgment and decree, which procedural law does not permit notwithstanding the overriding objective.

p. 2
02

Whether the two parcel descriptions refer to the same land

Holding

The court found the two descriptions refer to one and the same parcel of land

Reasoning

The defendant objected that the judgment described the property as 464/1283 Nguu Settlement Scheme while the title issued in 2011 read Makueni/Nguu Ranch/1283, contending different tenure. The court held the difference to be one of description only, the two references denoting one parcel, and invoked Article 159(2)(d) against undue technicality in the procedural requirement.

p. 2
03

Whether the decree complied with the judgment under Order 21 Rule 7

Holding

The rule is mandatory, but the technical objection did not assist the applicant, whose real failure was seeking relief never pleaded

Reasoning

Order 21 Rule 7(1) requires the decree to agree with the judgment, in mandatory terms. The applicant could not invoke the overriding objective and Article 159 to circumvent that the decree contained no eviction order; a party cannot enforce in execution what the court did not grant.

p. 2

Legal principles established

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  • A decree must agree with the judgment and specify clearly the relief granted; relief not adjudicated upon in the suit cannot be enforced through execution

Court orders

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  1. 1.The Plaintiff/Applicant's Notice of Motion dated 16th August 2018 is dismissed with costs to the Defendant/Respondent
Jurisdiction invoked
Sections 1A, 1B, 3A and 38 of the Civil Procedure Act and Order 22 of the Civil Procedure Rules, 2010; Article 159 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, "James Mathuva Makewa v Nzavi Ngului [2019] KEELC 4476 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4476/eng@2019-02-25

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