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ELCDismissedEnvironment and Land Civil Miscellaneous Application E004 of 2023· [2023] KEELC 20681 (KLR)

Stephen Juma Onyango t/a Intime Auctioneers v Kuria & 21 others

Environment and Land Court
12 October 2023
JOJUDY OMANGE
629 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan auctioneers cannot get police help to evict people without first obtaining a court order authorising the eviction.

What this practically means

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Executive summary

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The applicant, an auctioneer trading as Intime Auctioneers, moved the Environment and Land Court at Nairobi by Notice of Motion dated 6th July 2023, brought under Section 3A of the Civil Procedure Act, Order 50(1) of the Civil Procedure Rules and Rule 9(2) of the Auctioneers Rules. He sought orders for police assistance and escort to enable him, acting on instructions from Wambugu and Muriuki & Co. Advocates for Wilson Gacanja, the alleged legal owner of Plot LR No. 209/9770 along Makweni/Makueni Road, Kileleshwa, to remove illegal occupants and structures and restore the site pursuant to an enforcement notice issued by the Director of Planning & Enforcement, Nairobi County Government on 29th May 2023. He further sought supervision of the exercise by the OCS Kileleshwa and Nairobi County Enforcement officers, with costs in the cause. In an unopposed application supported by his affidavit (annexing instructions, title deed, enforcement notice and photographs), the court considered the source of an auctioneer's eviction powers under Section 2 of the Auctioneers Act. Holding that such powers emanate from a court order, and noting that no court order authorising the eviction was attached, Justice Judy Omange found the application for police assistance premature and dismissed it with no orders as to costs, the application not having been opposed.

Key legal issues

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01

Source of an auctioneer's power to evict

Holding

The power emanates from a court order; without one the application for police assistance is premature

Reasoning

The court read Section 2 of the Auctioneers Act, which deems a person who carries out evictions under an order of court to carry on the business of auctioneer. From a plain reading, the applicant's asserted eviction powers exist only where a court order authorises the eviction. The applicant attached an enforcement notice from the Director of Planning & Enforcement, Nairobi County, but no court order; the police assistance sought was therefore premature.

p. 2

Legal principles established

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  • An auctioneer's power to carry out an eviction derives from a court order; police assistance to effect an eviction cannot be granted in the absence of such an order

Court orders

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  1. 1.The Notice of Motion dated 6th July 2023 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 50(1)
  • Auctioneers RulesRule 9(2)
  • Auctioneers ActSection 2 (and Section 3 as discussed)
Jurisdiction invoked
Section 3A of the Civil Procedure Act, Order 50(1) of the Civil Procedure Rules and Rule 9(2) of the Auctioneers Rules

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, "Stephen Juma Onyango t/a Intime Auctioneers v Kuria & 21 others", Case Analysis (2023). Environment and Land Civil Miscellaneous Application E004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20681/eng@2023-10-12

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