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ELCAllowedEnvironment & Land Case 437 of 2015· [2023] KEELC 16181 (KLR)

Ooko v Oloo & 2 others

Environment and Land Court
9 March 2023
EAE. Asati
958 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kisumu court ordered land occupants evicted within 30 days, confirming police must protect bailiffs during evictions but cannot carry them out themselves.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kisumu (E. Asati, J) determined the plaintiff/decree holder's unopposed notice of motion dated November 28, 2022, brought under sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 22 rule 82 of the Civil Procedure Rules 2010. The applicant sought an eviction order against the defendants from land parcel No Kisumu/Kanyakwar 'A'/134 and an order directing the OCS Kondele police station to provide security to the bailiff/auctioneer executing the judgment and decree. The applicant deponed that judgment had been entered in his favour, costs taxed, notice of entry of judgment served, and that despite orders for vacant possession the defendants had not vacated; he feared they might employ goons to obstruct execution. The application was served on the defendants' advocates but not opposed, and was heard ex parte on February 22, 2023. The court found that Order 22 rule 82 empowers it to place a decree holder in possession where there is resistance or obstruction, and that the defendants' resistance was without just cause. Applying Mariko Ndwiga v Edithe Muthanje, it distinguished the police role (maintaining law and order) from that of bailiffs/auctioneers (executing eviction). The court allowed the application: the respondents were given 30 days to vacate, failing which a warrant of eviction would issue; the OCS Kondele was directed to provide security during eviction; and there were no orders as to costs.

Key legal issues

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01

Entitlement to an eviction order in execution of a decree

Holding

An eviction order was warranted as the defendants, though served, did not respond and their resistance had no just cause.

Reasoning

The court noted the prior judgment awarded vacant possession to the plaintiff and that the defendants had not vacated. The application under Order 22 rule 82 was served but unopposed, and was heard ex parte. The court was satisfied the obstruction or resistance was without just cause and that eviction was necessary to place the decree holder in possession in execution of the judgment.

02

Role of police in execution of eviction orders

Holding

Police are to provide security to maintain peace and order during eviction, not to carry out the eviction themselves.

Reasoning

Relying on Mariko Ndwiga v Edithe Muthanje, the court distinguished the roles of bailiffs/auctioneers (agents of eviction) and police (law enforcement). Given the applicant's apprehension that the defendants might employ goons to block the process, an order that the OCS Kondele provide security was merited.

p. 1

Legal principles established

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  • Order 22 rule 82 empowers the court to put a decree holder into possession where there is resistance or obstruction, and an eviction order may issue where such resistance is without just cause.
  • The role of police in an eviction is confined to maintaining law and order; the eviction itself is executed by court bailiffs or auctioneers.

Court orders

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  1. 1.The respondent to vacate and hand over vacant possession of land parcel No Kisumu/Kanyakwar 'A'/134 within 30 days of the ruling, in default of which a warrant of eviction shall issue for forceful eviction by a court bailiff or auctioneer
  2. 2.The OCS Kondele police station to provide security to the court bailiff/auctioneer for maintaining peace and order during the eviction
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3 and 3A
  • Civil Procedure Rules 2010Order 22 rule 82

Cases cited (1)

  • Mariko Ndwiga vs Edithe Muthanje
    [2020] eKLR

    Distinction between the role of police as law enforcement officers and that of court bailiffs/auctioneers executing eviction orders.

Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 22 rule 82 of the Civil Procedure Rules 2010

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, "Ooko v Oloo & 2 others", Case Analysis (2023). Environment & Land Case 437 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16181/eng@2023-03-09

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