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ELCAllowedNot stated in the ruling (application dated 11th December 2019)· [2020] KEELC 3315 (KLR)

Kimutai Lelei v Hosea Bittok & another [2020] KEELC 3315 (KLR)

High Court of Kenya
25 February 2020
MOM. A. Odeny
996 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Eldoret allowed an eviction, ordering police to escort the auctioneer, and dismissed unproven objections about licensing and procedure.

What this practically means

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Executive summary

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This ruling by M. A. Odeny, J at the High Court, Eldoret, determined an application dated 11th December 2019 by the 1st defendant seeking eviction of the plaintiff from parcel PIONEER/NGERIA BLOCK 1(EATEC)113 and police assistance for the auctioneer, Paul K. Ole Yaile t/a Nasioki Auctioneers, during the eviction. The application followed a judgment of 31st July 2019 declaring the 1st defendant the absolute owner of the parcel, declaring the plaintiff's continued occupation unlawful, issuing a permanent injunction, ordering vacant possession within 30 days, awarding general damages of Kshs. 300,000 for trespass, and costs. The applicant submitted the 30 days had lapsed, the decree had been served on 17th September 2019, and relied on sections 152(a) to 152(i) of the Land Laws (Amendment) Act and the Ministry of Lands Eviction and Resettlement Guidelines, October 2009. The plaintiff opposed, arguing lack of jurisdiction over an ex-parte chamber summons for police assistance under rule 9 of the Auctioneers (Amendment) Rules, 2009, that only a licensed auctioneer with a warrant could apply, that instructions not in Sale Form 1 were a nullity, and that Kamau Lagat & Co Advocates were not properly on record. The court held that with judgment rendered, a decree issued and served, and no stay of execution, the only remaining step was enforcement requiring police supervision to ensure law and order. Unsubstantiated objections about the auctioneer's licensing were dismissed as side shows, and the objection that High Court decrees must be executed by magistrates' courts was rejected given the role of the Deputy Registrar. The application was allowed as prayed with costs, with the eviction to be conducted during the day in a humane manner.

Key legal issues

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01

Police assistance for execution of decree

Holding

The application for police assistance during eviction has merit and is allowed as prayed.

Reasoning

The court noted that judgment had been rendered on 31st July 2019 and a decree issued and served on 17th September 2019. The 30 days granted for compliance had lapsed without compliance. With no stay of execution in place, the only remaining step was enforcement of the decree, which required police supervision to ensure peace; obstruction claims about the auctioneer's licensing were dismissed as unproven side shows.

p. 2
02

Forum for execution of a High Court decree

Holding

The objection that a High Court decree must be executed by a magistrate's court is not tenable.

Reasoning

The respondent argued that an application for police assistance under rule 9 of the Auctioneers (Amendment) Rules, 2009 could only be made in a magistrate's court in a miscellaneous cause, and that High Court decrees should be executed by magistrates' courts. The court rejected this, pointing to the role of the Deputy Registrar of the High Court in executing its decrees.

p. 2
03

Licensing of the auctioneer and validity of instructions

Holding

The objection that the auctioneer is not licensed, absent proof, is a side show.

Reasoning

The applicant's counsel submitted that Nasioki Auctioneers are licensed and that Kamau Lagat & Co Advocates were properly on record. The respondent produced no proof of the alleged lack of licence, and the court treated that opposition as a side show, allowing the application.

p. 2

Legal principles established

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  • Once judgment has been rendered and a decree issued with no stay of execution, the court can order police assistance with execution to ensure law and order.
  • High Court decrees are executed through the Deputy Registrar of the High Court and the objection that magistrate's courts must execute them is untenable.
  • Eviolations during execution must be carried out humanely and during the day.

Court orders

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  1. 1.The application dated 11th December 2019 is allowed as prayed
  2. 2.The plaintiff/respondent to be evicted from parcel PIONEER/NGERIA BLOCK 1(EATEC)113
  3. 3.Police assistance/escort to be provided to maintain peace and order during the eviction
  4. 4.The eviction to be carried out during the day in a humane manner
  5. 5.Costs of the application to the applicant

Authorities

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Legislation

  • Land Laws (Amendment) ActSections 152(a) to 152(i)
  • Civil Procedure ActSection 94
  • Auctioneers (Amendment) RulesRule 9; rule 5(8)
  • Auctioneers (Amendment) RulesSale Form 1 to the schedule (1997 Rules)
  • Ministry of Lands – Eviction and Resettlement Guidelines, October 2009Clauses 4.9.1 and 4.9.3
Jurisdiction invoked
Enforcement of decree in the suit in which judgment was delivered on 31st July 2019 (post-judgment application, including inherent powers under Section 94 of the Civil Procedure Act as argued)

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, "Kimutai Lelei v Hosea Bittok & another [2020] KEELC 3315 (KLR)", Case Analysis (2020). Not stated in the ruling (application dated 11th December 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3315/eng@2020-02-25

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