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ELCDismissedThika Chief Magistrates Court D.O Case No. 81 of 2010 (appeal)· [2019] KEELC 4960 (KLR)

Keziah Mugure Njuguna v Naomi Wambui Gacucha [2019] KEELC 4960 (KLR)

High Court of Kenya
24 January 2019
SOS. Okong'o
1,336 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Winning a land case at a tribunal doesn't automatically give you the right to evict - you must file a separate eviction suit in Kenya.

What this practically means

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Executive summary

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The suit property, L.R No. Ruiru/Kiu/Block 2/Githunguri 2511, was registered in the name of the appellant's deceased husband and upon confirmation of grant in July 2008 devolved to the appellant in trust for her six children. In 2010 she claimed before the Thika Land Disputes Tribunal that the property belonged to her husband, not the respondent who had built on it. The tribunal's decision of 23rd September 2010 was adopted as judgment in Thika D.O Case No. 81 of 2010; the Appeals Committee at Nyeri upheld it and that decision was likewise adopted on 8th August 2011. The respondent's judicial review application to quash those decisions was dismissed by the High Court on 26th April 2013. The appellant then applied by Chamber Summons dated 15th August 2011 for leave to evict the respondent and demolish her structures. On 28th November 2013, M. W. Mutuku Ag. SPM dismissed the application, noting a subsisting order in Thika CMCC No. 953 of 2010 restraining eviction. The appellant appealed on six grounds. S. Okong'o J affirmed the magistrate on two grounds: first, a court cannot issue an order conflicting with a subsisting order of a court of concurrent jurisdiction; secondly, the adoption proceedings under Section 7 of the Land Disputes Tribunals Act could only enforce the tribunal awards, which made no provision for eviction, so a substantive eviction suit was required. The appeal was dismissed with no order as to costs, the respondent having filed no submissions.

Key legal issues

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01

Effect of a subsisting restraining order in another case

Holding

The lower court could not grant eviction while an order restraining eviction issued in Thika CMCC No. 953 of 2010 remained in force

Reasoning

It was undisputed that an order restraining the appellant from evicting the respondent was in force in Thika CMCC No. 953 of 2010 when the application was heard. Until that order was discharged, granting eviction would conflict with an order of a court of concurrent jurisdiction. Courts must not act as agents of confusion, so the magistrate rightly refused the eviction order.

p. 2
02

Scope of the court's powers under Section 7 of the Land Disputes Tribunals Act on adoption of tribunal awards

Holding

The court's role was limited to adopting and enforcing the tribunal and Appeals Committee decisions; since the decrees did not direct eviction, no eviction could issue in D.O Case No. 81 of 2010

Reasoning

D.O Case No. 81 of 2010 was filed strictly for adoption of the tribunal's decision under Section 7 of the Land Disputes Tribunals Act. The decrees merely declared and confirmed the appellant's ownership and did not direct eviction. The court could not, in exercise of its powers under the Act, grant relief the tribunal and Appeals Committee never awarded.

p. 2

Legal principles established

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  • A court cannot issue an order that would conflict with a subsisting order of a court of concurrent jurisdiction
  • Where a tribunal award as adopted contains no provision for eviction, the court in adopting proceedings cannot grant eviction orders; a party must file a substantive suit for eviction

Court orders

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  1. 1.The appellant's appeal was dismissed
  2. 2.No order as to costs since the respondent did not make any submissions in opposition to the appeal

Authorities

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Legislation

  • Land Disputes Tribunals Act, Chapter 303A Laws of Kenya (now repealed)Section 7
On appeal from
Chief Magistrates Court at Thika
D.O Case No. 81 of 2010
Jurisdiction invoked
First appeal against decision of the Chief Magistrates Court in D.O Case No. 81 of 2010 (adoption of Land Disputes Tribunal decisions under Section 7 of the Land Disputes Tribunals Act, Cap 303A)

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, "Keziah Mugure Njuguna v Naomi Wambui Gacucha [2019] KEELC 4960 (KLR)", Case Analysis (2019). Thika Chief Magistrates Court D.O Case No. 81 of 2010 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4960/eng@2019-01-24

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