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ELCPartially AllowedEnvironment & Land Case 252 of 2017· [2023] KEELC 21169 (KLR)

Burudi & 4 others v Mkimbo; Mzungu Samson Tumbo t/a Sparknet Auctioneers Services (Applicant)

Environment and Land Court
31 October 2023
DOD. O. Ohungo
943 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kakamega court ordered police to protect an auctioneer during an eviction, but refused to let police or the auctioneer demolish structures or take over enforcement.

What this practically means

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Executive summary

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The plaintiffs had sued claiming title to South Kabras/Shamberere/367 by adverse possession. Their originating summons was struck out on 29 May 2018 as res judicata, with an order that they vacate within three months, failing which they would be evicted. An eviction order followed on 28 February 2019, and on 24 March 2021 the court stayed the eviction for six months in the public interest. After the stay lapsed, Mzungu Samson Tumbo, an auctioneer trading as Sparknet Auctioneers Services, instructed by the defendant to execute the eviction, filed Notice of Motion dated 19 August 2022 seeking security from the County Commander, Kakamega County during eviction, authorisation for the County Commander to use minimum force and to oversee enforcement, and liberty to demolish structures and fence the parcel. The plaintiffs, though served, filed no response or submissions. The court found the 2018 and 2019 orders still in force and the stay lapsed. It granted prayer 2, ordering the County Commander to provide security to the auctioneer during the eviction, but refused prayers 3 and 4, holding that enforcement of the decree belongs to the auctioneer, the police's role being limited to security, and that no demolition or fencing order existed on record. Costs of the application and of security were made costs in the cause.

Key legal issues

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01

Allocation of enforcement roles between the auctioneer and the police

Holding

The auctioneer enforces the decree; the police only provide security and retain their usual mandate to use reasonable force in the course of duty

Reasoning

The court noted the 2018 vacation order and 2019 eviction order remained in force and the 2021 stay had lapsed. It found merit in prayer 2 only, holding that enforcement of the decree belongs to the licensed auctioneer instructed by the decree-holder, while the police's role is limited to providing security, and they may use reasonable force as part of their ordinary duties.

p. 3
02

Whether the court could authorise demolition of structures and fencing

Holding

Refused, because no such order exists on record

Reasoning

The court held that an executing party cannot obtain through an enforcement application powers that the decree does not confer; the auctioneer must confine execution to the orders on record.

p. 3

Legal principles established

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  • A court decree is to be enforced by the auctioneer, with the police limited to providing security during execution
  • An auctioneer may only enforce the orders actually on record, not additional self-help measures such as demolition

Court orders

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  1. 1.The County Commander, Kakamega County is ordered to provide security to Mzungu Samson Tumbo trading as Sparknet Auctioneers Services during eviction of the plaintiffs from land parcel South Kabras/Shamberere/367
  2. 2.Costs of the application and cost of security shall be in the cause
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit property; enforcement of the court's own decree

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, "Burudi & 4 others v Mkimbo; Mzungu Samson Tumbo t/a Sparknet Auctioneers Services (Applicant)", Case Analysis (2023). Environment & Land Case 252 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21169/eng@2023-10-31

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