Biegon v Rono & 3 others (Environment & Land Case 3 of 2018) [2024] KEELC 5989 (KLR)
The bottom line
#The Environment and Land Court in Kericho ruled that filing an appeal does not stop land eviction, and the winning landowner could proceed with eviction.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to eviction order following judgment
Eviction order issues because the 30-day vacate period lapsed, the Defendants remain in occupation, and no stay of execution is in force
The judgment of 2nd November 2023 ordered the Defendants to vacate within thirty days failing which an eviction order would issue. The period lapsed and they admitted occupation. Their pending appeal does not operate as a stay under Order 42 Rule 6(1), and no stay order exists. The Plaintiff is entitled to the fruits of his judgment.
Applicability of Section 152E Land Act notice
Section 152E does not apply where ownership was in dispute and has been judicially determined
Relying on Julius L Marten v Caleb Arap Rotich, Section 152E envisages no dispute on ownership and unlawful occupation. Here ownership was disputed and determined in the Plaintiff's favour with an order to vacate, so the three-month statutory notice procedure was unnecessary.
Appointment of a named auctioneer and attachment of movables
Plaintiff to appoint any auctioneer of his choice; attachment to recover costs must follow the Auctioneer's Act procedure, which was not shown to have been initiated
The court declined to bind the applicant to Hegeons Auctioneers. Regarding attachment for taxed costs, Order 22 Rule 8 requires an inventory, and Syrilla A. Barasa confirms that proclamation, attachment and auction are distinct steps on separate dates; no evidence showed the process had commenced, so that prayer was refused.
Legal principles established
#- An appeal does not operate as a stay of execution of a decree or order
- Section 152E of the Land Act's three-month notice requirement does not apply where ownership was disputed and determined by the court
- A successful party is ordinarily entitled to costs
Court orders
#- 1.An order of eviction issued against the Defendants evicting them from land parcel No. LR No. Kericho/Kipkelion Barsiele Block 2 (Kaplaba)/202 measuring 6.87 hectares as per the judgment delivered on 2/11/2023
- 2.The Plaintiff/Applicant shall appoint an auctioneer of his choice to carry out the eviction
- 3.The OCS Kipkelion Police Station shall give security for execution of the Eviction Order
- 4.The Plaintiff/Applicant shall have costs of this application
- Jurisdiction invoked
- Order 22 Rules 8, 82 & 83 of the Civil Procedure Rules; Sections 1, 1A, 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Biegon v Rono & 3 others (Environment & Land Case 3 of 2018) [2024] KEELC 5989 (KLR)", Case Analysis (2024). Not stated in extract (suit commenced by Plaint dated 10th January 2018; appeal referenced as Civil Appeal E005 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5989/eng@2024-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.