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ELCStruck OutEnvironment & Land Case 437 of 2013· [2022] KEELC 4937 (KLR)

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

Environment and Land Court
27 September 2022
1,855 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling by Mutungi, J of the Environment and Land Court at Nakuru disposed of the 1st defendant's twin applications dated January 20, 2021 in a long-running land dispute over a parcel at the outskirts of Njoro Township comprised in PDP No R23/2001/3. The suit originated as Nakuru CMCC No 773 of 2009, in which the plaintiffs claimed ownership by adverse possession and sought injunctive relief; their plaint was struck out on March 19, 2010 for lack of juridical character and jurisdiction. The 1st defendant's counterclaim proceeded ex parte and judgment with an eviction order was entered on March 2, 2012. That judgment was, however, set aside by consent on December 6, 2012, with the co-defendants permitted to file a defence and their own counterclaim. The file was transferred to the High Court and renumbered ELC No 437 of 2013, and on January 30, 2018 Munyao, J dismissed the suit and counterclaim for want of prosecution. The 1st defendant nonetheless sought a fresh eviction order predicated on the 2012 judgment and decree. The court held that since the judgment had been set aside, the eviction order fell with it, and the January 30, 2018 dismissal order remained in force and had not been set aside. The application for a fresh eviction order was therefore incompetent and an abuse of the court process, and was struck out with no orders as to costs. The twin reinstatement application and the preliminary objection were not expressly determined.

Key legal issues

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01

Competence of an eviction application founded on a set-aside judgment

Holding

The application was incompetent and an abuse of process because the judgment and decree it relied on no longer existed

Reasoning

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.

p. 4
02

Effect of setting aside a judgment by consent

Holding

Setting aside the judgment restored the parties to their pleadings; the counterclaim was left undetermined on merit

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The 1st defendant's chamber summons application dated January 20, 2021 seeking a fresh eviction order is struck out
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Rulesorder 17 rule 2
  • Civil Procedure Rulesorder 22 rule 18
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

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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, "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.