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ELCPartially Allowed· [2022] KEELC 2728 (KLR)

Bundi v Kangethe & 17 others (Environment & Land Case 411 of 2017) [2022] KEELC 2728 (KLR)

Environment and Land Court
23 June 2022
JKJ G Kemei
1,387 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 won the right to evict trespassers immediately, five years after judgment, because courts will not let losing parties delay execution with last-minute survey demands.

What this practically means

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Executive summary

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This was a ruling on an amended Notice of Motion dated 15/11/2021 in a suit over premises Thika/Mun/Block11/863, in which judgment had already been entered for the Plaintiff/Applicant on 6/12/2018, granting a permanent injunction and eviction orders. The Applicant sought leave to execute the decree before ascertainment of costs, warrants of eviction against the Respondents through named auctioneers, and police assistance to enforce compliance. The 15th Respondent, chairman of a Jua Kali Association, opposed, deponing that the Respondents had relocated to a public open space/road reserve where they had been placed by the County Government, and urged the court to first ascertain the boundary between the Applicant's land and the open space before allowing eviction, claiming the orders would be used to annex public land and destroy small businesses. The Applicant replied that the Respondents moved out as trespassers and that the survey request was a delaying tactic. Only the Applicant filed submissions. The court, framed with the single issue of whether the application was merited, applied Section 94 of the Civil Procedure Act and the rationale in Mercedes Sanchez Rau Tussel v Samken Ltd, holding that execution before taxation is discretionary. Noting the five-year delay since judgment and the 15th Respondent's admission of relocation, it held the survey request inconsequential and tantamount to reopening a conclusively determined suit. The application was granted as prayed, with eviction warrants and police compliance ordered; no orders for costs were made.

Key legal issues

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01

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

Holding

Yes - the court exercised its discretion in favour of the Applicant given the delay since judgment in 2018 and the Respondent's admitted relocation.

Reasoning

The court found that judgment had been delivered on 6/12/2018 and the Applicant had not enjoyed the fruits of his victory for five years. Section 94 permits execution forthwith except as to costs. The 15th Respondent admitted relocating from the parcel, and his survey request was a delaying tactic that would reopen the suit. The discretion under Section 94 was therefore properly exercised for the Applicant.

p. 3
02

Whether the 15th Respondent's demand for a surveyor's report before eviction could impede execution of a final judgment

Holding

No - the issue of eviction was already conclusively determined and the survey request was inconsequential.

Reasoning

The court held that the rights of the parties had been adjudicated to finality, with a permanent injunction and eviction orders granted. The 15th Respondent's contention that the Respondents were relocated by the County Government to a public open space could not reopen determined issues; allowing it would amount to a retrial. The valid judgment stood and execution could proceed accordingly.

p. 2

Legal principles established

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  • Where a decree should be executed before costs are ascertained by taxation, the court may, in its discretion under Section 94 of the Civil Procedure Act, order execution forthwith except as to costs.
  • Once rights have been adjudicated to finality, a party cannot use ancillary applications to reopen the suit; the judgment-holder is entitled to enjoy the fruits of the judgment.

Court orders

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  1. 1.Leave be and is hereby granted to the Applicant to proceed with execution of decree before ascertaining costs.
  2. 2.The Respondents, their agents, servants, employees, representatives or any one acting under or claiming from them be evicted and any building therein be demolished pursuant to the Judgment and decree in this suit from the suit premises Thika/mun/block11/863 by issuance of warrants of eviction to Aeliud Chai Wambu T/a Chador Auctioneers, Thika Business Centre P.o Box 27304-00100 Thika.
  3. 3.The OCPD and OCS Thika Police division and station do ensure compliance with the judgement and decree issued by this Honourable Court
  4. 4.No orders for costs.

Authorities

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Legislation

  • Civil Procedure ActSection 94
  • Civil Procedure ActSection 2 (definition of decree)

Cases cited (1)

  • Mercedes Sanchez Rau Tussel v. Samken Ltd & 2 Others
    [2002] eKLR
Jurisdiction invoked
Section 94 of the Civil Procedure Act (execution of decree before ascertainment of costs), arising from the court's original civil jurisdiction over the suit land

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, "Bundi v Kangethe & 17 others (Environment & Land Case 411 of 2017) [2022] KEELC 2728 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2728/eng@2022-06-23

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