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ELCAllowedNot stated in the judgment (application dated 23rd November 2020)· [2021] KEELC 3945 (KLR)

OCS Kabras Police Station v Jimmy Habil Mkimbo [2021] KEELC 3945 (KLR)

Environment and Land Court
24 March 2021
NMN.A. Matheka
513 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kakamega court paused an eviction for six months because the community was likely to resist violently, putting safety first.

What this practically means

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Executive summary

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By a motion dated 23rd November 2020 brought under Order 24 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, the applicants sought a stay of eviction orders to enable them 'weigh the situation on the ground'. The application was supported by grounds that carrying out the eviction would result in serious casualties on the side of the public and the police, given imminent resistance. The respondent opposed the motion as a non-starter and fatally defective, contending that it was purportedly drawn and filed by the ODPP, giving the false impression of a criminal prosecution although no prosecution existed and the ODPP was not involved; he also complained of non-service on himself and his advocates. He explained that the applicants had earlier brought an originating summons dated 20th July 2015 claiming parcel No. S/Kabras/Shamberere/367 by adverse possession, that Kakamega HCCC No. 513 of 2014 had rendered that summons res judicata with orders of eviction which were executed, and that eviction orders issued on 28/2/2019 and renewed on 4th August 2020 after the applicants re-entered the land. The court found the situation on the ground tense, with the Ambunya family having drawn in the extended family and the Boda Boda Association to resist eviction, and held that the applicant needed more time to assess it. In the interest of public interest the application was allowed: a stay of the eviction order was granted for six months, with no orders as to costs.

Key legal issues

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01

Whether a stay of eviction orders should issue on grounds of threatened public safety

Holding

The application was merited; a stay of six months was granted to allow the applicants to assess the tense situation on the ground.

Reasoning

The applicants contended that the Ambunya family had drawn in the extended family and the Boda Boda Association to resist eviction, that the situation on the ground was tense, and that carrying out the eviction risked serious casualties among the public and the police. The court accepted that the situation was tense and held that the applicant needed more time to assess it, justifying a six-month stay in the public interest.

p. 2

Legal principles established

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  • A court may grant a stay of eviction in the interest of public interest where the situation on the ground is tense and there is risk of violence.

Court orders

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  1. 1.Stay of the eviction order issued on 28/2/2019 and renewed on 4th August 2020 granted for six months
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 24 Rule (rule number not stated in the judgment)
Jurisdiction invoked
Order 24 of the Civil Procedure Rules and Section 3A of 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, "OCS Kabras Police Station v Jimmy Habil Mkimbo [2021] KEELC 3945 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 23rd November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3945/eng@2021-03-24

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