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ELCPartially AllowedNot stated in the judgment (ruling on application for police security to implement decree issued 7.12.2023 following judgment of 28.7.2021)· [2024] KEELC 1114 (KLR)
Kithamba v Mwongera (Environment and Land Appeal 139 of 2019) [2024] KEELC 1114 (KLR)
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·~1 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The applicant sought an order compelling the OCS Ruiri Police Station to provide security for implementation of a decree issued on 7.12.2023 pursuant to a judgment delivered on 28.7.2021, in which the respondent was to vacate the suit land. The applicant, supported by an affidavit sworn on 1.9.2023, stated that the judgment debtor had declined to vacate the land despite intervention by the local area administration, thereby depriving him of his rights. The respondent opposed the application through a replying affidavit sworn on 3.11.2023, contending that the applicant was his uncle who had exchanged the suit land with family land (L.R No. Nyaki/Mulathankari/494) but changed his mind and sued; that his sisters had succeeded in a succession claim over a one-third share of that land, which the applicant occupies; and that survey works were ongoing. He termed the application malicious. The court held that the judgment and decree of 28.7.2021 had not been appealed against or set aside, that the respondent was aware of the decree but had not complied, and that although there was no evidence of service of the statutory notice under Sections 152 A-F of the Land Act, the respondent had shown no justification for failing to hand over vacant possession. The court ordered the applicant to serve the requisite notice and, upon its expiry, directed the OCS Ruiri to evict the respondent in accordance with the law, with costs of the eviction and application to be met by the respondent if he did not voluntarily vacate. Orders accordingly.
Key legal issues
#01
Enforcement of a decree for vacant possession through police assistance
Holding
The application was allowed; the applicant was to serve the requisite statutory notice, after which the OCS Ruiri was to evict the respondent in accordance with the law.
Reasoning
The decree of 28.7.2021 had neither been appealed against nor set aside. The respondent was aware of the decree but had not complied, despite intervention by the local administration. Although there was no evidence that the statutory notice under Sections 152 A-F of the Land Act had been served, the respondent offered no justification for withholding vacant possession. The court therefore conditioned police-assisted eviction on prior service of the statutory notice.
p. 2
Legal principles established
#- A judgment debtor who shows no justification for failing to hand over vacant possession under a subsisting, unappealed decree may be evicted after due statutory notice, with the OCS providing enforcement assistance.
Court orders
#- 1.The applicant to serve the requisite statutory notice under Sections 152 A-F of the Land Act
- 2.Upon expiry of the notice, the O.C.S Ruiri to evict the respondent from the suit land in accordance with the law
- 3.Costs of the eviction and of the application, if the respondent does not voluntarily vacate the land, to be met by the respondent
- Jurisdiction invoked
- Original civil jurisdiction of the court; enforcement of its own decree
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kithamba v Mwongera (Environment and Land Appeal 139 of 2019) [2024] KEELC 1114 (KLR)", Case Analysis (2024). Not stated in the judgment (ruling on application for police security to implement decree issued 7.12.2023 following judgment of 28.7.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1114/eng@2024-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.