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ELCAllowedNot stated in judgment (Notice of Motion dated 11th January 2021)· [2021] KEELC 325 (KLR)

Francis Thuku Gakomo & another v Joseph Gitau Njoki & 3 others [2021] KEELC 325 (KLR)

Environment and Land Court
2 December 2021
LKL. Komingoi
553 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who doesn't defend an eviction case loses automatically — the court granted a permanent injunction, eviction and Kshs.100,000 monthly damages without opposition.

What this practically means

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Executive summary

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The court delivered a ruling on a Notice of Motion dated 11th January 2021 brought by the 1st Plaintiff/Applicant, Francis Thuku Gakumo, under section 152E of the Land Act, 2012, sections 13(1) and (2) of the ELC Act, sections 1, 3 and 63 of the Civil Procedure Act and Orders 21, 22, 26, 38, 40, 48 and 51 of the Civil Procedure Rules. The application sought a permanent injunction restraining the 1st Defendant, Joseph Gitau Njoki, from entering or interfering with the parcels known as Kiambaa/Ruaka/611 and Kiambaa/Ruaka/1075, his eviction and delivery of vacant possession, removal of his structures at his cost, police security from the Officer Commanding Rweno Police Post during eviction, and payment or deposit of Kshs.100,000/- per month as mesne profits for his continued occupation, together with costs. The application was supported by the Applicant's affidavit sworn on 11th January 2021 and was not opposed. The court recorded that it had stayed proceedings pending HCCC No. 1995 of 98 and that on 11th June 2020 it had delivered a judgment declaring the Plaintiffs the legal and/or lawful owners of the suit property. Finding the facts uncontroverted, the court found merit in the application and allowed it in its entirety. L. Komingoi, Judge, signed and delivered the decision at Nairobi on 2nd December 2021; the Defendants did not appear.

Key legal issues

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01

Whether the Applicants were entitled to a permanent injunction, eviction orders and ancillary relief over Kiambaa/Ruaka/611 and Kiambaa/Ruaka/1075

Holding

The application was allowed in its entirety as it was unopposed and the Applicants' facts were uncontroverted, following the earlier judgment declaring them lawful owners

Reasoning

The court noted that it had previously stayed proceedings pending HCCC No. 1995 of 98 and had on 11th June 2020 delivered a judgment declaring the Plaintiffs the legal and/or lawful owners of the suit property. The application was not opposed and the facts were not controverted, so the court found merit and allowed the application in its entirety.

p. 2

Legal principles established

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  • Where an application is unopposed and the facts presented are not controverted, the court may allow the application on the uncontroverted material

Court orders

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  1. 1.The Notice of Motion dated 11th January 2021 is allowed in its entirety, being unopposed and uncontroverted

Authorities

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Legislation

  • Land ActSection 152E
  • Environment and Land Court ActSection 13(1) and (2)
  • Civil Procedure ActSections 1, 3 and 63
  • Civil Procedure RulesOrders 21, 22, 26, 38, 40, 48 and 51
Jurisdiction invoked
Section 152E of the Land Act, 2012; ELC Act Section 13(1) and (2); Sections 1, 3 and 63 and Orders 21, 22, 26, 38, 40, 48 and 51 of the Civil Procedure Rules and 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, "Francis Thuku Gakomo & another v Joseph Gitau Njoki & 3 others [2021] KEELC 325 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 11th January 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/325/eng@2021-12-02

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