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ELCPartially AllowedNot stated in judgment (arises from Case No. 744 of 2017)· [2024] KEELC 5421 (KLR)

Mogeni t/a Elimonyaco Auctioneers v Amolo (Suing as legal representative of the Estate of Jacktone Amolo Oyare); Okongo & 2 others (Defendant) (Environment & Land Case 744 of 2017) [2024] KEELC 5421 (KLR)

Environment and Land Court (as implied by reference to the Environment and Land Court Act; application filed in the court whose judgment of 20th March 2019 was upheld)
17 July 2024
404 words in judgment
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The bottom line

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The Environment and Land Court in Migori ordered police to provide security so an auctioneer could execute an eviction decree upheld on appeal.

What this practically means

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Executive summary

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By an ex-parte notice of motion dated 30th April 2024 brought under sections 3, 3A and 78 of the Civil Procedure Act, Elijah Mogeni t/a Elimonyaco Auctioneers sought an order directing the OCS Uriri Station to provide reasonable security during execution and to evict the Plaintiff/Respondent from parcel No. Kanyamkago/Kajuju/488 and effect the court order of 11th May 2019. The application was supported by an affidavit and grounds recounting receipt of an eviction order with instructions to evict the respondents from the suit parcel. Mr. S. Ndege, counsel for the 1st defendant/decree holder, urged the court to grant prayer No. 2, pointing to the decision of the Court of Appeal which upheld the trial judgment. The court noted that by its judgment of 23rd June 2023 in Kisumu Court of Appeal Civil Appeal No. 73 of 2019, the judgment of the court rendered on 20th March 2019 was upheld and the appeal dismissed with costs. Guided by sections 3 and 3A of the Civil Procedure Act, sections 3 and 19 of the Environment and Land Court Act, 2015, and Article 159(2)(b) of the Constitution (that justice shall not be delayed), the court found the application merited. It allowed the application in terms of prayer No. 2 for execution of the decree in line with its judgment. Prayer No. 1 was marked moot and not granted. No costs order was made.

Key legal issues

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01

Whether police assistance/security should be extended to a decree-holder's auctioneer for execution of an upheld decree

Holding

Yes; the OCS Uriri Station is ordered to provide reasonable security and to evict the respondent from the suit parcel in execution of the decree

Reasoning

The decree-holder's judgment of 20th March 2019 was upheld on appeal by the Court of Appeal in Kisumu Civil Appeal No. 73 of 2019 on 23rd June 2023. Counsel for the 1st defendant/decree holder urged prayer No. 2, and the court found the application merited, anchored on sections 3 and 3A of the Civil Procedure Act, sections 3 and 19 of the Environment and Land Court Act, and Article 159(2)(b) of the Constitution (justice shall not be delayed).

p. 2

Legal principles established

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  • An auctioneer executing a decree upheld on appeal is entitled to police security during execution and eviction

Court orders

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  1. 1.The ex-parte notice of motion dated 30th April 2024 is allowed in terms of prayer No. 2, namely that the OCS Uriri Station provides the applicant with reasonable security during execution and evicts the Plaintiff/Respondent from suit parcel No. Kanyamkago/Kajuju/488 and effects the court order issued on 11th May 2019
Jurisdiction invoked
Sections 3, 3A and 78 of the Civil Procedure Act (Cap. 21); sections 3 and 19 of the Environment and Land Court Act, 2015; Article 159(2)(b) of the Constitution of Kenya, 2010

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, "Mogeni t/a Elimonyaco Auctioneers v Amolo (Suing as legal representative of the Estate of Jacktone Amolo Oyare); Okongo & 2 others (Defendant) (Environment & Land Case 744 of 2017) [2024] KEELC 5421 (KLR)", Case Analysis (2024). Not stated in judgment (arises from Case No. 744 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5421/eng@2024-07-17

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