Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in judgment· [2021] KEELC 1033 (KLR)

Mary Wangui Karanja & another v Rhoda Wairimu Karanja & another [2021] KEELC 1033 (KLR)

Environment and Land Court
11 November 2021
4,005 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

A Kenyan court confirmed you can evict a losing party and enforce your judgment even while they appeal, as long as no stay of execution is in place.

What this practically means

#

Executive summary

#
The Plaintiffs, executrices of the Will of James Karanja Kioi, had obtained judgment on 6th February 2020 against the 2nd Defendant for trespass on LR No. 11595, Muguga, and an order to surrender possession. They extracted a decree on 12th May 2020 and moved the court by Notice of Motion dated 13th May 2020 for leave to execute before taxation of the party-and-party bill of costs, an order of eviction, and police supervision by the OCS Kikuyu. The 2nd Defendant objected, noting a pending stay application in the Court of Appeal (Civil Application Nairobi No. 160 of 2020) and contending that evictions must comply with Sections 152B-152I of the Land Act. Angote J framed three issues: leave to execute before taxation, eviction, and costs. Relying on Section 94 of the Civil Procedure Act and the Bamburi Portland Cement line of authority, the court held that leave was warranted since a decree from the court's original civil jurisdiction existed and no stay was in force, an appeal not operating as an automatic stay. On eviction, the court resolved the conflicting authorities on the Land Act eviction framework, holding that sections 152A-152G apply only to evictions without a court order unless the judgment itself invokes them. Finding the application merited, the court granted leave to execute before taxation, issued an eviction order against the 2nd Defendant, authorised the OCS Kikuyu to enforce it, and awarded costs of the application to the Plaintiffs.

Key legal issues

#
01

Whether leave should be granted to execute the decree before taxation of costs under Section 94 of the Civil Procedure Act

Holding

Leave granted; the decree was passed in the court's original civil jurisdiction and no stay of execution was in force.

Reasoning

Section 94 confers a discretion on the court where a decree was passed in its original civil jurisdiction. A valid decree existed. The Court of Appeal authorities confirm that an appeal does not operate as an automatic stay and that the High Court retains jurisdiction over execution even where an appeal is pending. Since no stay had been granted by either court, and judgment had been delivered more than a year earlier, the discretion was properly exercised in favour of the Plaintiffs.

p. 5
02

Whether eviction in execution of a decree must comply with Sections 152B-152I of the Land Act

Holding

No; those provisions govern evictions carried out without a court order and apply to court-ordered evictions only if the court so specifies.

Reasoning

The court noted two divergent lines of authority (Eboso J in Muthithi Investments; Olao J in Benjamin Kimeli Tanui). It held that the statutory notices under sections 152A-152G apply to evictions of persons occupying public, community or private land carried out without a court order. Where the judgment directs delivery of vacant possession without mentioning section 152E, it would defeat justice to require those notices during execution. The judgment of 6th February 2020 made no such reference.

p. 5

Legal principles established

#
  • An appeal does not operate as an automatic stay of execution; the decree-holder may execute unless a stay is in force.
  • The notice requirements of Sections 152A-152G of the Land Act do not apply to evictions carried out in execution of a court order unless the court itself so directs.
  • Leave of the High Court under Section 94 of the Civil Procedure Act is required for execution of a decree before taxation of costs.

Court orders

#
  1. 1.The Plaintiffs be and are hereby granted leave to execute the decree dated 12th May, 2020 against the 2nd Defendant before taxation of costs.
  2. 2.An order of eviction be and is hereby issued against the 2nd Defendant by himself, or his agents and/or servants from Land Reference number L.R No. 11595 situate at Muguga pursuant to the Judgment of this court granted on 6th February, 2020.
  3. 3.The Officer Commanding Police Station (OCS), Kikuyu Area is hereby authorized to enforce compliance of order ii above.
  4. 4.The 2nd Defendant shall bear the costs of this Application.

Authorities

#

Legislation

  • Civil Procedure ActSection 94; Section 2
  • Civil Procedure RulesOrder 21 Rule 7(4); Order 42 Rule 6(1)
  • Land ActSections 152A-152I; 152E
  • Land (Amendment) ActAct No. 28 of 2016

Cases cited (10)

  • Bamburi Portland Cement Co. Ltd vs Hussein
    (1995) LLR 1870 (CAK)
  • Lakeland Motors Limited vs Harbhajan Singh Sembi
    [1998] eKLR
  • Mercedes Sanchez Rau Tussel vs Samken Ltd & 2 Others
    [2002] eKLR
  • Equity Bank Limited vs West Link Mbo Limited
    [2013] eKLR
  • Adiel Muriithi Philip vs Thomas Maingi
    [2017] eKLR
  • Violet Jeptum Rahedi vs Albert Kubai Mbogori
    [2014] eKLR
  • Sparkle Properties Limited vs Johana Ngai & 8 others
    [2020] eKLR
  • Muthithi Investments Limited vs Andrew S Kyendo & 22 others
    [2020] eKLR
  • Benjamin Kimeli Tanui vs Omari Salim Nasib & another
    [2020] eKLR
  • Solome Naliaka Wabwile vs Alfred Okumu Musinaka
    [2020] eKLR
Jurisdiction invoked
Original jurisdiction; application under Section 94 of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mary Wangui Karanja & another v Rhoda Wairimu Karanja & another [2021] KEELC 1033 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1033/eng@2021-11-11

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