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ELCDismissed· [2020] KEELC 2886 (KLR)

Bahola Mkalindi Rhigho & others v Michael Seth Kaseme & 4 others [2020] KEELC 2886 (KLR)

Environment and Land Court
6 May 2020
JOJ. O. Olola
1,866 words in judgment
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The bottom line

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A Tana River county government failed to delay a family's land eviction, with the court finding no ambiguity in an earlier judgment awarding them 15 acres in Hola Town.

What this practically means

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Executive summary

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The County Council of Tana River (3rd Defendant) moved the Court by Notice of Motion dated 28 February 2019 seeking a conservatory order restraining the Petitioners and Plaintiff from evicting, demolishing or interfering with public and private amenities in Hola Town - including the County Headquarters, County Assembly, Hola District Hospital, Hola Prisons, schools, churches, mosques and petrol stations - and, on the main, seeking interpretation of the Judgment of 15 April 2016 and Ruling of 28 September 2018 to specify what part of Hola Town and what the '15 acres or thereabouts' awarded to the Petitioners and Plaintiff comprised. The Applicant argued the Judgment and Ruling were ambiguous, causing confusion, panic and unrest, and that the Petitioners and Plaintiff purported to claim the entire town through hired goons. The 1st Petitioner, Philip Subili Rhigo, opposed, averring there was no confusion; the Petition had clearly described the 15 acres, the warrant named only the 1st and 3rd Respondents for eviction, and public utilities stood on land willingly donated by the family. Justice Olola reviewed the pleadings and found the suitland, though unsurveyed and unregistered, was clearly identified in the Petition and in the Applicant's own earlier Replying Affidavit, which annexed photographs, maps and Part Development Plans. The court held there was no latent ambiguity requiring interpretation, that evictions were a lawful process conducted by a duly appointed Court Bailiff confined to the parties in the warrant, and that fears of demolition of public amenities were misplaced and baseless. The application was dismissed with costs to the Petitioners on 6 May 2020 at Malindi.

Key legal issues

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01

Whether the Judgment of 15 April 2016 and Ruling of 28 September 2018 were ambiguous as to the 15 acres awarded

Holding

No latent ambiguity existed; the identity and extent of the suitland were clearly discernible from the pleadings, evidence and judgment

Reasoning

The court perused the pleadings and found the Petition described the 15 acres as demarcated on the ground near Hola Water Supply site and Laza Primary School. The Applicant's own earlier Replying Affidavit sworn by its Town Clerk demonstrated awareness of the demarcations, annexing photographs, maps and Part Development Plans identifying the suit land. Having participated in the trial, the Applicant could not now claim confusion three years after judgment.

p. 3
02

Whether the impending evictions threatened public and private amenities warranting conservatory orders

Holding

The evictions were a lawful process confined to the parties named in the Court Bailiff's warrant; the claim of threatened demolition of public amenities was baseless

Reasoning

The court found nothing suggesting the Bailiff would evict persons other than those named in the warrant. The 1st Petitioner had indicated as early as 2 May 2013 that the family had no issue with public utilities, having willingly donated the land on which they stand. The court accepted this and found the Applicant's fears misplaced, removing the foundation for conservatory relief.

p. 3

Legal principles established

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  • A court will not interpret its own judgment where no latent ambiguity exists; the description and extent of suit property must be discernible from the pleadings, evidence and judgment

Court orders

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  1. 1.The 3rd Defendant's Notice of Motion dated 28 February 2019 is dismissed
  2. 2.Costs of the application awarded to the Petitioners
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the consolidated suits; application for interpretation of the Court's own Judgment and Ruling

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, "Bahola Mkalindi Rhigho & others v Michael Seth Kaseme & 4 others [2020] KEELC 2886 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2886/eng@2020-05-06

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