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ELCPartially AllowedNot stated in the judgment· [2022] KEELC 2990 (KLR)

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)

Environment and Land Court
23 June 2022
1,577 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Before the Environment and Land Court were two cross applications arising from a judgment delivered on September 26, 2019 in which the plaintiffs were declared beneficial owners of parcel Narok/Cis-Mara/Nkoben/77, followed by a decree issued December 9, 2020 ordering the defendant to vacate within 60 days and in default eviction to issue. The plaintiffs' Notice of Motion dated June 2, 2021 under Order 3, 3A and Order 35 rules 1 and 2 of the Civil Procedure Rules sought an eviction order plus police assistance. The defendant opposed, citing his occupation since 2011, substantial developments, and his pending intention to appeal. The defendant separately filed a Notice of Motion dated December 17, 2021 under Order 42 rule 6 and section 3A of the Civil Procedure Act seeking stay of execution pending an appeal he had not yet filed, requiring leave. The plaintiffs opposed, contending the application was an abuse of process, the decree had already been executed (title issued in the 1st plaintiff's name), and the defendant was guilty of material non-disclosure and forum shopping. The court framed two issues: whether the eviction application was merited and whether stay could be granted. On stay, Mbogo J declined to entertain the application because a similar application had already been determined by another judge of the same court. On eviction, the court held the defendant's reasons were 'hopeless', the plaintiffs were entitled to enjoy the fruits of their judgment, and allowed the eviction application. Eviction was ordered against the defendant and all persons in occupation, with the OCS Ololulunga providing security and assistance, and the defendant was ordered to pay costs of both applications.

Key legal issues

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01

Whether the eviction application dated June 2, 2021 was merited

Holding

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.

Reasoning

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.

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Whether stay of execution pending appeal should be granted

Holding

Dismissed. The court declined to entertain the application because a substantially similar application had already been determined by another judge of the same court.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.The Officer Commanding Station Ololulunga Police Station to provide supervision, security and assistance in the eviction exercise
  3. 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. 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

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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, "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.