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ELCAllowedNotice of Motion dated September 20, 2021 (suit number not stated in the judgment)· [2022] KEELC 2986 (KLR)

Muthiani (Suing as an Administrator of the Estate of Muthiani Musomba) v Manoti (Environment & Land Case 318 of 2017) [2022] KEELC 2986 (KLR)

High Court of Kenya (court not expressly named in the judgment)
22 June 2022
TMT. Murigi
855 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court evicted a defendant who ignored a 2019 land judgment, confirming winning litigants can enforce judgments without delay.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated September 20, 2021 brought by the Plaintiff/Applicant under Order 22 Rule 29 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, and Article 159(2) of the Constitution. The Applicant sought an order evicting the Defendant/Respondent from land parcel number Mbitini/Ngetha/390, demolition of structures thereon, and an order directing the OCS Emali Police Station to enforce and supervise the eviction, pursuant to a judgment delivered on June 20, 2019 by Hon Justice Mbogo and a decree extracted on October 1, 2019, which ordered eviction, Kshs 200,000/- general damages and costs, with liberty to apply for eviction if the Defendant failed to vacate willingly. The original suit, instituted on July 27, 2017, proceeded as an undefended suit. The Respondent was duly served with the application but filed no response. The court, Hon. T. Murigi, Judge, framed one issue: whether the Applicant was entitled to the orders sought. Finding that the June 20, 2019 judgment had neither been set aside nor challenged, that the Respondent had not given vacant possession, and that the Applicant was entitled to enjoy the fruits of his judgment, the court allowed the application. It issued an eviction order against the Respondent, authorized the OCS Emali to enforce compliance, and ordered the Respondent to bear the costs of the application. A parcel-number discrepancy (309 vs 390) appears in the final order.

Key legal issues

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Whether the Applicant is entitled to an eviction order pursuant to the judgment of June 20, 2019

Holding

The application was merited; since the judgment had not been set aside or challenged and the Respondent had failed to vacate or give vacant possession, the court granted eviction and authorized the OCS Emali to enforce compliance.

Reasoning

The court noted the June 20, 2019 judgment and the decree extracted on October 1, 2019 granted eviction, with liberty to file an application for eviction if the Defendant failed to vacate willingly. The Respondent was served with the application but filed no response. The judgment remained intact and unchallenged, and the Respondent had not given vacant possession. The Applicant was thus entitled to enjoy the fruits of the judgment and the eviction order issued as directed in the original judgment.

p. 2

Legal principles established

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  • A successful litigant is entitled to enjoy the fruits of his judgment, and where a judgment confers liberty to apply for eviction and the judgment has not been set aside or challenged, the court will issue the eviction order.

Court orders

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  1. 1.An order of eviction issued against the Respondent from land parcel Mbitini/Ngetha/309
  2. 2.The Officer Commanding Police Station Emali authorized to enforce compliance of the Court order
  3. 3.The Respondent to bear the cost of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 29; Order 51 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Constitution of KenyaArticle 159(2)
Jurisdiction invoked
Order 22 Rule 29, Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Article 159(2) of the Constitution

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, "Muthiani (Suing as an Administrator of the Estate of Muthiani Musomba) v Manoti (Environment & Land Case 318 of 2017) [2022] KEELC 2986 (KLR)", Case Analysis (2022). Notice of Motion dated September 20, 2021 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2986/eng@2022-06-22

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