Jamin Kiombe Lidodo v Emily Jerono Kiombe & another [2020] KEELC 3114 (KLR)
The bottom line
#A Kenyan landowner lost his attempt to reverse an eviction judgment, and police assistance for the eviction was granted.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 20th December, 2018 contained an error apparent on the face of the record justifying review
No error apparent; the two judges exercised independent decision-making and the Plaintiff's remedy is an appeal.
The ruling of 11th July, 2013 by Munyao J dealt with preliminary objections, while the judgment of 20th December, 2018 by Ombwayo J was a final determination on the merits. The later judge was not sitting on appeal over the earlier ruling. Each judge exercised decisional independence; an aggrieved party's recourse is an appeal to the Court of Appeal. Order 45 requirements were not satisfied.
Whether the Plaintiff's review application was filed without unreasonable delay
There was delay; the application appeared aimed at buying time.
The judgment required 60 days' notice before eviction. The eviction notice was served on 26th April, 2019, so the 60 days lapsed on or about 26th June, 2019. The Motion for stay and review was filed on 23rd July, 2019, after the notice period had lapsed, suggesting it was intended to delay the 1st Defendant's enforcement application.
Whether the 1st Defendant was entitled to police security to execute the eviction
Yes; the Plaintiff had shown no willingness to give vacant possession and the 60-day notice had lapsed.
The eviction ordered in the judgment of 20th December, 2018 had not been complied with despite proper notice. The Plaintiff continued to defy the eviction notice, denying the 1st Defendant enjoyment of the fruits of justice. Security from the OCS, Moi's Bridge Police Station, upon payment of usual fees, was warranted.
Legal principles established
#- Where a party is aggrieved by a finding of the trial court, the remedy is an appeal, not an application for review; a disagreement between two judges of coordinate jurisdiction at different stages of a suit does not constitute an error apparent on the face of the record.
Court orders
#- 1.The Plaintiff's Motion dated the 23rd July 2019 is dismissed with costs to both Defendants
- 2.The OCS, Moi's Bridge Police Station, to provide security during the eviction of the Plaintiff, his servants and or agents from L. R. Moi's Bridge/Moi's Bridge block 8 (Natwana ADC) 68, upon the usual payment of fees being made by 1st Defendant
- 3.The Plaintiff do pay the 1st Defendant the costs of the application
- Jurisdiction invoked
- Inherent jurisdiction over its own suit; review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jamin Kiombe Lidodo v Emily Jerono Kiombe & another [2020] KEELC 3114 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3114/eng@2020-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.