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ELCPartially AllowedNot stated in the excerpt (ELC suit; decree No. 2012/18 referred to)· [2020] KEELC 2653 (KLR)

Lucy Watiri Muburi v Njoroge F.A Wachira & Another [2020] KEELC 2653 (KLR)

Environment and Land Court
12 May 2020
3,178 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan land court ordered two defendants evicted, ruling that arguments raised late in submissions cannot replace formal applications or evidence.

What this practically means

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Executive summary

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This first-instance ruling by J.G. Kemei, Judge, determines two competing notices of motion argued simultaneously by written submissions: the Defendants' application dated 13/12/19 seeking leave for new advocates on record (granted by consent), stay of execution, maintenance of status quo, and compensation for property allegedly destroyed during enforcement; and the Plaintiff's application dated 22/11/19 under Order 22 Rules 82 and 83 of the Civil Procedure Rules and section 3A of the Civil Procedure Act seeking the Defendants' eviction from parcel No. LOC9/KANYENYA-INI/574, police supervision, and enforcement by Front Bench Auctioneers. The Defendants, aggrieved by the judgment of 27/9/18 ordering them to vacate within 90 days, blamed their former advocates for failing to file an appeal and stay application, and relied on a pending Court of Appeal application (No. 157 of 2019, Nyeri) for leave to appeal out of time. The court dismissed the Defendants' application, holding that submissions cannot enlarge pleadings, that the Defendants had withdrawn an earlier stay application, that no stay orders exist from this Court or the Court of Appeal, and that their damage claim was unproven and raised an independent cause of action. The court found the decree was not stale, the Defendants' resistance was without just cause, and allowed the Plaintiff's application, granting the eviction orders with costs to the Plaintiff.

Key legal issues

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01

Whether stay of execution could be granted to the Defendants

Holding

Refused. The stay sought in submissions (pending appeal) was not pleaded; the Defendants had withdrawn their earlier stay application and no stay orders exist; their resistance is an afterthought without lawful cause.

Reasoning

The court held parties bound by pleadings, dismissing stay-pending-appeal arguments as there was no such prayer. The Defendants had withdrawn a stay application by letter dated 21/3/19, and neither this Court nor the Court of Appeal had granted stay. Their continued occupation in defiance of the 27/9/18 judgment, which gave 90 days to vacate, constituted obstruction without just cause.

p. 3
02

Whether the decree was stale so as to require a notice to show cause

Holding

The decree issued on 20/12/18 and the application filed 22/11/19 was within one year from the date of the decree, so no notice to show cause was necessary.

Reasoning

Relying on Order 22 Rule 18 principles, the court measured the one-year period from the date of issue of the decree, not the date of judgment. Since the application fell within one year, the execution process was not stale and the Plaintiff could proceed without a notice to show cause.

p. 4
03

Whether the Defendants were entitled to damages for alleged illegal execution

Holding

The allegations were unproven; the Defendants were themselves observed demolishing structures and carting away timber, and no evidence linked the Plaintiff to any damage.

Reasoning

Applying the burden of proof, the court found the Defendants produced no evidence of the properties damaged or of the Plaintiff's responsibility. The Plaintiff's photographic evidence showed the Defendants themselves removed a structure. The court noted this raised a fresh cause of action that could be pursued independently.

p. 3

Legal principles established

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  • Submissions are not pleadings and cannot expand the prayers in a notice of motion; parties are bound by their pleadings
  • A party who alleges damage must prove it (he who alleges must prove)
  • A court will not stay its own lawful and valid orders where no stay exists from it or from the Court of Appeal
  • Where resistance to execution is occasioned by the judgment debtor without just cause, the applicant is entitled to be put into possession under Order 22 Rule 83

Court orders

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  1. 1.The Defendants' Notice of Motion dated 13/12/19 is dismissed with costs to the Plaintiff
  2. 2.Orders prayed under prayers 2 and 3 of the Plaintiff's Notice of Motion dated 22/11/19 (eviction of the Defendants from parcel No. LOC9/KANYENYA-INI/574, including authorization of the OCS and the named auctioneer to enforce the eviction) are granted
  3. 3.Costs of the Plaintiff's application to be borne by the Defendants in favour of the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 22 Rule 82
  • Civil Procedure RulesOrder 22 Rule 83
  • Civil Procedure RulesOrder 22 Rule 18 (referred to in submissions)
  • Civil Procedure ActSection 3A

Cases cited (3)

  • Rose Chepkorir Vs Mwinyi Mouhammed Riva & Anor
    (2015) EKLR
  • Richard Muthusi Vs Patrick Gituma Ngomo & Anor
    (2017) EKLR
  • Nairobi Women's Hospital Vs Purity Kemunto
    (2018) EKLR
Jurisdiction invoked
Order 22 Rules 82 and 83 of the Civil Procedure Rules and section 3A of the Civil Procedure Act

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, "Lucy Watiri Muburi v Njoroge F.A Wachira & Another [2020] KEELC 2653 (KLR)", Case Analysis (2020). Not stated in the excerpt (ELC suit; decree No. 2012/18 referred to). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2653/eng@2020-05-12

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