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ELCPartially AllowedEnvironment & Land Case 252 of 2017· [2023] KEELC 21233 (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
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The bottom line

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What this practically means

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Executive summary

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The plaintiffs had filed an Originating Summons dated 20 July 2015 claiming title to South Kabras/Shamberere/367 by adverse possession. On 29 May 2018 N.A. Matheka, J struck out the summons as res judicata under section 7 of the Civil Procedure Act and ordered the plaintiffs to vacate within three months, failing which they would be evicted. Eviction was ordered on 28 February 2019, and on 24 March 2021 the court stayed the eviction for six months in the public interest. The stay lapsed, and Mzungu Samson Tumbo, a licensed auctioneer instructed by the defendant to execute the eviction order, 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 land. The plaintiffs, though served, filed no response or submissions. The court, D.O. Ohungo, J, found the 2018 and 2019 orders still in force and the stay lapsed. It allowed prayer 2, ordering the County Commander to provide security to the auctioneer during eviction, but refused prayers 3 and 4, holding that enforcement of the decree belongs to the auctioneer, the police role being limited to security, and that demolition and fencing could not be authorised absent any such order 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 if necessary

Reasoning

The court noted the 2018 vacation order and 2019 eviction order remained in force and the 2021 six-month stay had lapsed. It found merit in prayer 2 for security but declined prayers 3 and 4, holding that enforcement of the decree is the auctioneer's obligation, with the police role confined to security. Demolition and fencing were refused for want of any such order on record.

p. 3
02

Whether the prior orders remained enforceable

Holding

The 2018 and 2019 orders remained in force; the stay granted on 24 March 2021 had lapsed

Reasoning

The court traced the procedural history: the OS for adverse possession was struck out on 29 May 2018 as res judicata, eviction was ordered on 28 February 2019, and the stay of 24 March 2021 had expired. The applicants, having been served, filed no response or submissions, leaving the application uncontroverted.

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 extraneous relief such as demolition absent an order

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/applicants 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 civil jurisdiction of the Environment and Land Court over the suit land (South Kabras/Shamberere/367); enforcement of its own decrees and orders

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/2023/21233/eng@2023-10-31

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