Njoro Golf Club Squatters Self Help Group through its registered trustees and nine others v Uhuru Welfare Association through its purported registered trustees and five others & another
The bottom line
#A Kenyan court struck out an eviction attempt because the judgment it relied on had already been set aside, confirming eviction orders die when their judgments fall.
What this practically means
#Executive summary
#Key legal issues
#Competence of an eviction application founded on a set-aside judgment
The application was incompetent and an abuse of process because the judgment and decree it relied on no longer existed
The March 2, 2012 judgment in the counterclaim was set aside by consent on December 6, 2012, with leave to the co-defendants to file a defence and counterclaim. Once the judgment fell, the eviction order founded on it fell too. The counterclaim remained undetermined until dismissed for want of prosecution on January 30, 2018, an order never set aside. There was therefore no live decree to execute.
Effect of setting aside a judgment by consent
Setting aside the judgment restored the parties to their pleadings; the counterclaim was left undetermined on merit
The consent of December 6, 2012 set aside the judgment against the co-defendants, allowed them to file a defence within 14 days and pay thrown away costs. The court held that with the judgment set aside, the counterclaim was not determined on merit, as the co-defendants filed their defence and their own counterclaim, which remained the position until the January 30, 2018 dismissal order.
Legal principles established
#- An eviction order cannot issue on the basis of a judgment that has been set aside; where the judgment is set aside, the eviction order founded on it falls with it
- An application seeking execution of a non-existent judgment and decree is incompetent and an abuse of the court process
Court orders
#- 1.The 1st defendant's chamber summons application dated January 20, 2021 seeking a fresh eviction order is struck out
- 2.No orders as to costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction over the suit transferred from the High Court (HC Misc Application No 180 of 2013) and renumbered as Nakuru ELC No 437 of 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoro Golf Club Squatters Self Help Group through its registered trustees and nine others v Uhuru Welfare Association through its purported registered trustees and five others & another", Case Analysis (2022). Environment & Land Case 437 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4937/eng@2022-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.