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ELCAllowedMiscellaneous Application dated 29th January 2018 (arising from ELC Petition No. 929 of 2012 consolidated with ELC No. 1055 of 2012)· [2020] KEELC 2925 (KLR)

Simon Parkoyiet Mokare v Peter Kokai 3 others [2020] KEELC 2925 (KLR)

Environment and Land Court
23 April 2020
1,984 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant, Simon Parkoyiet Mokare, moved the Environment and Land Court by Notice of Motion dated 29th January 2018 seeking an order of eviction against the Respondents from LR Kajiado/Kaputiei South/2241 (now subdivisions 2625 and 2626) pursuant to the judgment of Justice Mutungi delivered on 25th September 2014 in ELC Petition No. 929 of 2012 consolidated with ELC No. 1055 of 2012, in which he was declared owner and the Respondents ordered to vacate within 90 days, failing which an eviction order would issue on application. The Court of Appeal dismissed the Respondents' appeal on 1st December 2017, but the Respondents refused to vacate. The 2nd Respondent opposed, arguing the court lacked jurisdiction, the application was an abuse of process, the orders could not issue in a miscellaneous application, it was a disguised execution belonging to the Deputy Registrar under Order 22, and that a pending appeal to the Supreme Court warranted maintenance of the status quo. The court held it had jurisdiction under section 13 of the Environment and Land Court Act, that the application was not res judicata as it merely implemented the judgment, that no stay of the Court of Appeal decision had been furnished, and that the Deputy Registrar could not grant eviction orders directed by a Judge. The application was allowed: an eviction order issued against all Respondents, the OCPD and OCS Mashuru were authorized to enforce compliance, and the Respondents were ordered to bear the costs. Judgment delivered on 23rd April 2020 by Christine Ochieng, Judge.

Key legal issues

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01

Jurisdiction of the ELC over the eviction application

Holding

The ELC has jurisdiction to entertain the miscellaneous cause seeking eviction pursuant to its earlier decree.

Reasoning

Section 13 of the Environment and Land Court Act confers original and appellate jurisdiction over disputes relating to environment and land under Article 162(2)(b), including disputes relating to land administration and management and to private land and enforceable interests in land. Since the cause arose from implementation of an eviction order issued by an ELC Judge, the court found it had jurisdiction.

p. 2
02

Whether the application is res judicata or an abuse of process

Holding

It is neither; it merely implements the judgment and follows the directions given in that judgment.

Reasoning

The court held that the application does not bring in the same cause of action previously heard and determined; it only seeks to implement the judgment of 25th September 2014, which expressly provided that in default an eviction order would issue on application. The 2nd Respondent failed to demonstrate how filing such a formal application constituted abuse of court process.

p. 3
03

Effect of pending Supreme Court appeal

Holding

In the absence of any order staying the Court of Appeal decision, the eviction order could issue.

Reasoning

The 2nd Respondent claimed to have lodged a Notice of Appeal to the Supreme Court but furnished no order staying the decision of the Court of Appeal, which had dismissed the appeal on 1st December 2017. The judgment of 25th September 2014 therefore remained valid and enforceable.

p. 2

Legal principles established

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  • The Environment and Land Court has jurisdiction, under section 13 of the Environment and Land Court Act, to hear and determine an application for an eviction order in implementation of its own judgment, and such an application is not res judicata because it merely seeks to implement the judgment.
  • Where an appeal has been dismissed and no order staying the decision is furnished, the terms of the original judgment remain valid and enforceable.
  • The Deputy Registrar cannot grant eviction orders directed by a Judge; such orders must issue from the Environment and Land Court.

Court orders

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  1. 1.An order of eviction issued against the 1st, 2nd and 3rd Respondents, by themselves or their agents and/or servants, from LR Kajiado/Kaputiei South/2241 (now Kajiado/Kaputiei South/2625 & 2626) pursuant to the decree granted on 25th September 2014 in ELC No. 929 of 2012 consolidated with ELC No. 1055 of 2012
  2. 2.The OCPD and the OCS Mashuru Police Station authorized to enforce compliance of the Court Order
  3. 3.The Respondents to bear the costs of the Application

Authorities

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Legislation

  • Civil Procedure Actsections 1, 1A, 3 and 3A
  • Civil Procedure Rules, 2010Order 22
  • Environment and Land Court Actsection 13(1), 13(2)(c) & (d)
  • Constitution of Kenya, 2010Article 162(2)(b)

Cases cited (6)

  • Owners of the Motor Vehicles ‘Lillian S’ Vs Caltex Oil (K) Ltd
    (1989) KLR 1
  • Hon. Basil Criticos V Attorney General & 2 Others
    Misc Application No. 1019 of 2004 Nairobi
  • Wambui Gikwa Vs Paul Kimani Muraba
    Misc Application No. 16 of 2017 Kajiado
  • Speaker of the National Assembly V Karume
    (2008) KLR 425
  • Paul Ngobia Njoroge & 2 Others V Kenya National Assurance Co. (2001) Ltd
    (2012) eKLR
  • James Wainaina & 6 Others V Karanja Mbugua & Co. Advocates
    (2012) eKLR
Jurisdiction invoked
Section 13 of the Environment and Land Court Act, giving effect to Article 162(2)(b) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Simon Parkoyiet Mokare v Peter Kokai 3 others [2020] KEELC 2925 (KLR)", Case Analysis (2020). Miscellaneous Application dated 29th January 2018 (arising from ELC Petition No. 929 of 2012 consolidated with ELC No. 1055 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2925/eng@2020-04-23

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