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ELCDismissedEnvironment & Land Case 212 of 2014· [2023] KEELC 20938 (KLR)

Okondo v Irario & 3 others

Environment and Land Court
24 October 2023
BOBOAZ N. OLAO
1,075 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 refused to order police security for an eviction because the original judgment never actually ordered anyone evicted.

What this practically means

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Executive summary

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This ruling by Olao J in the Environment and Land Court at Busia determines the plaintiff's Notice of Motion dated July 10, 2023 in a long-running land dispute over parcel South Teso/Angoromo/2168. The substantive suit had been heard and determined by Omollo J, who on March 13, 2023 granted the plaintiff a permanent injunction restraining the defendants from interfering with the suit land, declarations that the 2nd defendant's title was illegal and a nullity and that the plaintiff was the bona fide owner, an order for rectification of the register, and costs. The plaintiff then sought an order mandating the OCS Busia Police Station to provide security during an eviction exercise pursuant to the judgment and decree, asserting that the 1st and 2nd defendants had refused to comply and continued in occupation, operating a garage on the land. The application was unopposed: neither defendant filed responses, the 1st defendant was deceased, and counsel for the 2nd defendant who sought a stay of the application was not on record and had filed no application. The court declined to place the file aside. Although unopposed, the court dismissed the motion, holding that the judgment and decree contained no eviction orders - only an injunction and declarations - and that ordering police security for an eviction would amount to importing into the decree an order the court never made. The plaintiff was told to pursue another route. The motion was dismissed with no orders as to costs.

Key legal issues

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01

Whether police security can be ordered for an eviction not provided for in the decree

Holding

The application was dismissed because the decree granted only a permanent injunction and declarations, not eviction; ordering police security for eviction would import a non-existent order into the decree

Reasoning

The court reviewed the disposal orders of March 13, 2023 and the extracted decree, noting they comprised a permanent injunction, declarations of illegality of the 2nd defendant's title and of the plaintiff's ownership, rectification of the register, and costs. No eviction order was made. The plaintiff's affidavit wrongly asserted the decree included eviction. Granting the sought order would effectively add an eviction order the court never made, so the plaintiff must pursue another route.

p. 3

Legal principles established

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  • A court cannot, in execution or ancillary proceedings, import into its judgment and decree an order that was not part of the judgment; a party must pursue another route for relief not decreed

Court orders

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  1. 1.The notice of motion dated 10th July 2023 is dismissed with no orders as to costs

Authorities

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Legislation

  • Civil Procedure Rulessections 1, 1A, 1B, 3, 3A and 63(e)
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit; application brought under sections 1, 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Rules (as stated in the judgment)

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, "Okondo v Irario & 3 others", Case Analysis (2023). Environment & Land Case 212 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20938/eng@2023-10-24

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