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ELCPartially AllowedELC Suit (Notice of Motion dated 5th October 2023) – Kajiado/Kitengela parcels 5110 and 8125· [2024] KEELC 6216 (KLR)

Jims Fresh Vegetable Growers and Exporters Limited v Locland Limited & another (Environment & Land Case 277 of 2011) [2024] KEELC 6216 (KLR)

Environment and Land Court
26 September 2024
2,348 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court ordered Jim's Fresh Vegetable Growers to vacate two Kitengela parcels within 30 days and to pay eviction costs.

What this practically means

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Executive summary

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The 1st and 2nd Defendants moved the Environment and Land Court by Notice of Motion dated 5th October 2023 seeking enforcement of Order No. 3 of the Decree issued by the Deputy Registrar on 16th June 2023, namely eviction of the Plaintiff from land parcels Kajiado/Kitengela/5110 and 8125, together with police assistance. Judgment delivered on 5th May 2020 had dismissed the Plaintiff's suit on a sale agreement and allowed the Defendants' counterclaim, ordering eviction, a permanent injunction, removal of cautions and general damages of Kshs 10,000,000. The Plaintiff resisted enforcement, contending that it had filed a Notice of Appeal and an application for leave to appeal out of time (Nairobi Civil Appeal (Application) No. E496 of 2023) and would suffer substantial loss if evicted. The Court framed a single issue: whether an eviction order should issue. It noted the Plaintiff had previously obtained a conditional stay on 30th September 2020 on condition of depositing Kshs 10,000,000, which condition was never fulfilled, causing the stay to lapse, and no review or extension was sought. The Plaintiff's present response amounted to re-litigation of stay, which the Court was barred from entertaining. Crucially, correspondence on the record showed the Court of Appeal had denied the leave application on 24th May 2024, so no appeal was subsisting. The Court allowed the Motion: the Plaintiff was given 30 days to vacate failing which forceful eviction was authorised, the OCS Kitengela was directed to assist, the Plaintiff to pay the eviction costs and the costs of the Motion.

Key legal issues

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01

Whether an eviction order should issue against the Plaintiff in respect of land parcels Kajiado/Kitengela/5110 and 8125

Holding

The Motion was allowed; the Plaintiff was ordered to vacate within 30 days failing which forceful eviction was authorised

Reasoning

The Court held the Decree of 16th June 2023 remained valid and had not been set aside or varied. The Plaintiff had already obtained a conditional stay in September 2020 which lapsed for non-compliance and could not re-litigate stay. Leave to appeal out of time had been denied by the Court of Appeal, so no appeal was subsisting and the Plaintiff's continued occupation served only to deny the Defendants their right to property.

p. 5
02

Whether the Plaintiff could rely on substantial loss and the pending appeal to resist eviction

Holding

No - substantial loss was not proven and no appeal was subsisting since leave to appeal out of time had been denied

Reasoning

The Court noted correspondence on the record showing the Court of Appeal had, on 24th May 2024, denied the Plaintiff's application for leave to appeal out of time in Civil Application E496 of 2023. With no subsisting appeal, the Plaintiff's claims of substantial loss and a nugatory appeal had no foundation and the Decree had to be enforced.

p. 5

Legal principles established

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  • A decree of the Environment and Land Court is enforceable in accordance with the Civil Procedure Rules
  • Where a decree is for delivery of immovable property, possession shall be delivered to the party adjudged, removing any person bound by the decree who refuses to vacate
  • A party cannot re-litigate an application for stay of execution already determined by the Court

Court orders

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  1. 1.An order directing the Plaintiff to vacate the suit properties, Kajiado/Kitengela/5110 and Kajiado/Kitengela/8125 within 30 days hereof failure to which the Defendants and/or their authorized agents, are at liberty to forcefully evict the Plaintiff
  2. 2.The Officer Commanding Station (O.C.S) Kitengela Police Station, is hereby directed to provide assistance and oversee the enforcement of the eviction under order (i)
  3. 3.The Plaintiff be and is hereby ordered to pay the costs of the eviction exercise that may be incurred by the Defendants
  4. 4.The Plaintiff shall bear the costs of this Motion
Jurisdiction invoked
Articles 40 and 159 of the Constitution of Kenya, 2010; Sections 3, 13, 14 and 19 of the Environment and Land Court Act, 2011; Order 51 of the Civil Procedure Rules

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, "Jims Fresh Vegetable Growers and Exporters Limited v Locland Limited & another (Environment & Land Case 277 of 2011) [2024] KEELC 6216 (KLR)", Case Analysis (2024). ELC Suit (Notice of Motion dated 5th October 2023) – Kajiado/Kitengela parcels 5110 and 8125. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6216/eng@2024-09-26

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