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ELCDismissedNot stated in the judgment· [2022] KEELC 2947 (KLR)

Cheruiyot v Deputy County Commissioner Muhoroni (Petition E002 of 2022) [2022] KEELC 2947 (KLR)

High Court of Kenya
13 May 2022
AOANTONY OMBWAYO
841 words in judgment
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The bottom line

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Kenya's High Court dismissed a landowner's bid to stop an alleged eviction directive because he brought no evidence to prove it.

What this practically means

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Executive summary

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Hezron Kimeli Cheruiyot, the Petitioner, filed a Notice of Motion on 10th February 2022 under Rule 3(1) & (2) of the High Court (Practice and Procedure) Rules and Rule 24(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, seeking orders of prohibition to stay a holding by the Deputy County Commissioner that he should vacate land parcels Kisumu Fort Ternan 488, 489, 491, 492 and 494. He deposed that he had occupied and developed the properties for over ten years, that the properties were subject to pending suits (Kisumu ELC 45 of 2020 and Tamu ELC E005 of 2021), that a status quo order had been issued in the former suit, and that the Deputy County Commissioner had no authority to issue eviction orders over property in litigation before competent courts. The Respondent filed grounds of opposition on 1st April 2022, contending that the application was defective and that the allegations were unsupported and unproven. The parties otherwise failed to comply with filing directions issued on 24th March 2022. Antony Ombwayo J, delivering the ruling at Kisumu on 13th May 2022, held that the Petitioner had failed to prove the alleged directive to vacate, as no evidence had been adduced. The court dismissed the application with costs to the Respondent.

Key legal issues

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01

Whether the Petitioner discharged the burden of proving the alleged directive by the Deputy County Commissioner that he vacate the suit properties

Holding

The court found the application lacked merit because no evidence supported the allegations, and dismissed it with costs

Reasoning

The Petitioner alleged that the Deputy County Commissioner directed him to vacate the suit properties despite ongoing litigation before competent courts. The Respondent filed grounds of opposition insisting the allegations were unsupported and unproven. The court perused the file, noted the parties' non-compliance with filing directions, and concluded that no evidence had been adduced to establish the alleged holding, so the application failed.

p. 3

Legal principles established

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  • A party alleging a fact must adduce evidence to prove it; unproven allegations cannot ground constitutional relief

Court orders

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  1. 1.The Application is dismissed
  2. 2.Costs to the Respondent

Authorities

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Legislation

  • High Court (Practice and Procedure) RulesRule 3(1) & (2)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 24(1)
Jurisdiction invoked
Article 23 and 22 of the Constitution via Rule 3(1) & (2) of the High Court (Practice and Procedure) Rules and Rule 24(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Cheruiyot v Deputy County Commissioner Muhoroni (Petition E002 of 2022) [2022] KEELC 2947 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2947/eng@2022-05-13

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