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ELCAllowedEnvironment & Land Case 595 of 2016· [2023] KEELC 16922 (KLR)
Marindany v Mosonik; Onsongo (Applicant)
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·~4 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This ruling by FM Njoroge, J of the Environment and Land Court at Nakuru determined a Notice of Motion dated January 27, 2023 by the plaintiff, brought under Rule 9(1) and (2) of the Auctioneers (Amendment) Rules 2009 and Section 3A of the Civil Procedure Act, and supported by the affidavit of Hezron Getuma Onsongo, a Class B licensed auctioneer trading as Hegeons Auctioneers. The plaintiff sought an order evicting the defendant from Nakuru/Saino Settlement Scheme/2371 and an order that the OCS Kuresoi Police Station authorise officers to escort the auctioneers to maintain law and order during the eviction. The defendant opposed via a replying affidavit sworn March 20, 2023, contending she was never served with the decree, that the presiding judge had been transferred to Kakamega and she was not informed of the judgment, that she had instructed advocates to appeal, and that the auctioneer's licence had expired. The court framed a single issue: whether the plaintiff was entitled to the prayers sought. Noting judgment was delivered on February 28, 2022 with six months to vacate, expiring August 28, 2022, and an affidavit of service of the judgment sworn October 17, 2022, the court held that only a stay of execution or pending appeal could bar the application, and neither was exhibited. The application was allowed as prayed, with costs. The plaintiff relied on David Kipkosgei Kimeli v Titus Barmasai [2016] eKLR.
Key legal issues
#01
Whether the plaintiff was entitled to an eviction order and police assistance to execute the decree
Holding
Yes; the six-month period to vacate lapsed on August 28, 2022, the defendant remained in possession, and no stay of execution or pending appeal was exhibited.
Reasoning
Judgment was delivered on February 28, 2022 giving the defendant six months to vacate. An affidavit of service showed she was served with the judgment. The period lapsed on August 28, 2022 and she remained in possession. The defendant's asserted intention to appeal, with only a draft application for leave to appeal out of time, did not bar execution absent a stay order or pending appeal.
p. 2
Legal principles established
#- A judgment creditor is entitled to enjoy the fruits of his judgment where no stay of execution is in place and no pending appeal is exhibited
Court orders
#- 1.Orders of eviction of the defendant and/or her representatives or agents from land parcel Nakuru/Saino Settlement Scheme/2371
- 2.Order that the OCS Kuresoi Police Station authorise police officers to escort Hegeons Auctioneers to the suit property to maintain law and order during the eviction
- 3.Costs of the application provided for
- Jurisdiction invoked
- Rule 9(1) and (2) of the Auctioneers (Amendment) Rules 2009 and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marindany v Mosonik; Onsongo (Applicant)", Case Analysis (2023). Environment & Land Case 595 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16922/eng@2023-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.