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ELCPartially AllowedNot stated in judgment (Makueni Environment and Land Court miscellaneous application)· [2021] KEELC 4678 (KLR)

James Mathuva Makewa v Nzavi Ngului [2021] KEELC 4678 (KLR)

Environment and Land Court
22 January 2021
CMC.G. Mbogo
2,919 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff/Applicant moved the Environment and Land Court at Makueni by Notice of Motion dated 29th January 2020 under Sections 1A, 1B, 3A, 152E and 152G of the Land Act, seeking eviction of the Defendant/Respondent, Nzavi Ngului, from LR No. Makueni/Nguu/1283 formerly Plot No. 464/1283 Nguu Settlement Scheme, appointment of Mr. Mutune of M/s Faith Auctioneers to conduct the eviction, and police security from the OCS Emali. The Respondent objected on grounds of res judicata, defective service of the eviction notice, failure to identify structures and the Sadat Map parcel, and a pending committee report on allotments in the Nguu Settlement Scheme. The court framed four issues: ownership, the Respondent's interest, service of the eviction notice, and res judicata. It held ownership was undisputed, being supported by the title deed and the judgment of 19th February 2018 which remained in force, and which the Respondent had acknowledged in his dismissed stay application. Service was proved by the process server's affidavit and the Respondent's advocate's letter confirming receipt. On res judicata, the court distinguished the earlier dismissed execution application: the amended plaint contained no prayer for eviction, so the Plaintiff could not execute what was never awarded; the present application followed the statutory eviction procedure under Sections 152E and 152G with a compliant notice. Relying on Munyao Sila J's decision in Margaret Karwirwa Mwongera v Francis Kofi, the court allowed the application and ordered the eviction, the auctioneer's involvement, and OCS Emali's security. No costs order was made.

Key legal issues

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01

Ownership of the suit property

Holding

Ownership by the Applicant is not in dispute; it is buttressed by the title deed and the judgment of 19th February 2018, which remains in force

Reasoning

The court found the Applicant's title (JMM-1) and the judgment of 19th February 2018 unimpeached. The Respondent himself had acknowledged the Applicant's ownership in his application dated 29th April 2019 seeking stay for three months, which was dismissed on 12th November 2019. The Respondent gave no reasons for failing to vacate and was silent on his appeal; the court found he was merely procrastinating to deny the Applicant the fruits of his judgment.

p. 3
02

Service of the eviction notice

Holding

The Respondent was duly served with the eviction notice on 18th June 2019; grounds of objection 2 and 3 failed

Reasoning

The Eviction Notice (JMM-3) was addressed to Nzavi Ngului c/o Kindu Hotel, and the affidavit of service sworn by Michael Kamau Njonjo showed service on 18th June 2019 at Kindu Hotel. The Respondent did not demonstrate that the person served was not the Respondent. The Respondent's advocate's letter of 9th July 2019 confirming receipt and seeking suspension of the eviction corroborated service.

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03

Res judicata

Holding

The application is not res judicata; it is distinguishable from the earlier dismissed execution application because it proceeds under the statutory eviction procedure where no eviction decree existed

Reasoning

The earlier application dated 16th August 2018 sought to execute an eviction order that was never awarded in the judgment of 19th February 2018, since the amended plaint contained no prayer for eviction. The present application is brought under Sections 152E and 152G of the Land Act following a valid 90-day notice copied to the OCPD, Sub County Commissioner and Chief, and complies with the law. It is therefore a different cause, not a duplication.

p. 3

Legal principles established

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  • A plaintiff cannot execute an order of eviction that was not awarded in the judgment; eviction must follow the statutory procedure under Sections 152E and 152G of the Land Act
  • An application for eviction under Sections 152E and 152G of the Land Act, following statutory notice, is distinguishable from and not res judicata of a earlier execution application dismissed for want of an eviction decree

Court orders

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  1. 1.Orders of eviction granted against the Respondent Nzavi Ngului from LR No. Makueni/Nguu/1283 formerly Plot No. 464/1283 Nguu Settlement Scheme
  2. 2.Orders granted to Mr. Mutune of M/s Faith Auctioneers to conduct the eviction exercise in satisfaction of the orders granted
  3. 3.The Officer Commanding Emali Police Station (OCS) ordered to offer security to the auctioneers and maintain law and order

Authorities

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Legislation

  • Land Act No. 6 of 2012Section 152E
  • Land Act No. 6 of 2012Section 152G
  • Civil Procedure ActSections 1A, 1B, 3A (invoked in the application)

Cases cited (1)

  • Margaret Karwirwa Mwongera –Vs- Francis Kofi
    [2019] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A, 152E and 152G of the Land Act No. 6 of 2012

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, "James Mathuva Makewa v Nzavi Ngului [2021] KEELC 4678 (KLR)", Case Analysis (2021). Not stated in judgment (Makueni Environment and Land Court miscellaneous application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4678/eng@2021-01-22

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