Kuria & another (Both Suing as Personal Representatives of The Estate of Francis Kuria Njoroge) v Chirchir (Environment & Land Case 165 of 2017) [2022] KEELC 2990 (KLR)
The bottom line
#The Environment and Land Court ordered a defendant who occupied land for over a decade to be evicted, rejecting his attempt to delay execution pending an appeal he had not filed.
What this practically means
#Executive summary
#Key legal issues
#Whether the eviction application dated June 2, 2021 was merited
Allowed. The decree of December 9, 2020 ordered the defendant to vacate within 60 days and in default eviction to issue; the defendant's claimed occupation and developments did not excuse non-compliance.
The court noted the judgment of September 26, 2019 in favour of the plaintiffs and the decree of December 9, 2020 ordering the defendant to vacate within 60 days. The defendant's claim of occupation since 2011 and massive developments were held to be 'hopeless' reasons as he appeared reluctant to vacate. The court held that with a formal order arising from the judgment, it was only fair that the plaintiffs enjoy the fruits of their judgment.
Whether stay of execution pending appeal should be granted
Dismissed. The court declined to entertain the application because a substantially similar application had already been determined by another judge of the same court.
The defendant sought stay pending an appeal he had not yet filed, requiring leave. The court found the application could not be entertained as a similar application (dated July 8, 2020) had already been dismissed by a fellow judge of the same court. The court expressly declined to revisit the substance, deferring to the prior determination.
Legal principles established
#- Stay of execution under Order 42 rule 6 requires substantial loss, application without unreasonable delay, and security for due performance of the decree.
- Where a formal decree exists ordering vacation of land, the successful party is entitled to enjoy the fruits of its judgment and eviction orders should issue.
Court orders
#- 1.An eviction order issued against the defendant, his agents, servants and/or any person in occupation of parcel of land known as Cis-Mara/Nkoben/77
- 2.The Officer Commanding Station Ololulunga Police Station to provide supervision, security and assistance in the eviction exercise
- 3.The defendant to pay costs of the notice of motion application dated June 2, 2021 and the notice of motion application dated December 17, 2021
- 4.The notice of motion application dated December 17, 2021 dismissed
- Jurisdiction invoked
- Order 3, 3A and Order 35 rules 1 and 2 of the Civil Procedure Rules (eviction); Order 42 rule 6 of the Civil Procedure Rules and section 3A of the Civil Procedure Act (stay)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kuria & another (Both Suing as Personal Representatives of The Estate of Francis Kuria Njoroge) v Chirchir (Environment & Land Case 165 of 2017) [2022] KEELC 2990 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2990/eng@2022-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.