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ELCPartially AllowedMiscellaneous Application (filed 24th November, 2020)· [2021] KEELC 3582 (KLR)

Samimpex Kenya Limited v Hawo Bisharo Omar & 5 others [2021] KEELC 3582 (KLR)

Environment and Land Court
19 April 2021
ECE. C. Cherono
781 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Garissa court allowed a landowner to revive a 2014 eviction order after six years, confirming unappealed judgments stay valid and enforceable in Kenya.

What this practically means

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Executive summary

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This was an unopposed Notice of Motion dated 24th November, 2020 filed by the Plaintiff/Applicant, Mohamed Munir Chaurhri, seeking an extension of time to execute an eviction order against six Defendants/Respondents. The application was anchored on the Judicature Act, the Civil Procedure Act and Rules, the Land Act and the Land Regulations 2017. The applicant recounted that Hon. Justice Mary M. Githumbi, in Nairobi ELC No. 548 of 2013, delivered judgment on 2nd May, 2014 declaring him the rightful owner of Title Number Garissa Town/Block 5/3, granting permanent injunctions and damages for trespass, and ordering the defendants to vacate. An eviction order issued on 2nd May, 2014 was never executed because the Recovery Concept Auctioneers quoted Ksh. 1,500,000, which the applicant could not raise within a year. The applicant issued a notice to vacate dated 13th January, 2020, which the defendants ignored. The respondents, though served, filed no response and their counsel did not appear. The court, E. C. Cherono, ELC Judge, framed a single issue: whether the applicant was entitled to the orders sought. Noting that no appeal had been preferred against the 2014 judgment, the court held that its terms remained valid, observed that the suit land fell within the territorial jurisdiction of the Garissa court which had not been established in 2014, found the unopposed application merited, allowed it as prayed, and made no order as to costs.

Key legal issues

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01

Whether the applicant is entitled to an extension of time to execute the eviction order issued under the 2014 judgment and decree

Holding

The application, being unopposed and unmerited to the contrary, was allowed as prayed; time was enlarged to enable execution of the eviction order

Reasoning

The court noted the genesis of the miscellaneous cause was the judgment of Hon. Justice Mary M. Githumbi in Nairobi ELC No. 548 of 2013 delivered on 2nd May, 2014, which declared the applicant the rightful owner, granted permanent injunctions and damages. The eviction order was never executed because the auctioneers' bill of Ksh. 1,500,000 could not be raised within a year. No appeal had been lodged against that judgment, so its terms remained valid. The land lay within this court's territorial jurisdiction, which had not been established in 2014. The respondents were served but filed no response and did not appear, so the application was allowed as prayed, with no order as to costs.

p. 2

Legal principles established

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  • Where a judgment has not been appealed against, its terms remain valid and enforceable notwithstanding the passage of time
  • An unopposed application that is merited will be allowed as prayed

Court orders

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  1. 1.Extension of time granted to execute the eviction order issued to Recovery Concept Auctioneers under the Execution Order dated 3rd February, 2015, arising from the judgment of Hon. Justice Mary Githumbi dated 2nd May, 2014, directing the Defendants to vacate and hand over land known as Title Number Garissa Town/Block 5/3 to the Plaintiff
  2. 2.No order as to costs

Authorities

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Legislation

  • Judicature ActCap 8
  • High Court (Practice and Procedure Rules)Part 1 Rule 3
  • Civil Procedure Rules, 2010Order 22 Rule (3), Order 50 Rule 5, Order 51
  • Civil Procedure ActSection 95
  • Land ActSections 152A, 152B, 152E, 152G
  • Land Regulations 2017Regulation 65
Jurisdiction invoked
Judicature Act Cap 8; High Court (Practice and Procedure Rules); Orders 22 Rule (3), 50 Rule 5 and 51 of the Civil Procedure Rules, 2010; Section 95 Civil Procedure Act; Sections 152A, 152B, 152E, 152G of the Land Act; Regulation 65 of the Land Regulations 2017

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, "Samimpex Kenya Limited v Hawo Bisharo Omar & 5 others [2021] KEELC 3582 (KLR)", Case Analysis (2021). Miscellaneous Application (filed 24th November, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3582/eng@2021-04-19

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