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ELCAllowedNotice of Motion dated 4th June 2024 (arising from suit over land parcels N. Teso/Kocholia/2270, 2271 and 2268)· [2024] KEELC 6535 (KLR)

Jacka & another v Jacka & 3 others (Environment & Land Case 96 of 2013) [2024] KEELC 6535 (KLR)

Environment and Land Court
8 October 2024
2,028 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who wins a case can now ask the court to remove cautions and direct police to provide security during eviction.

What this practically means

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Executive summary

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The 1st and 2nd plaintiffs obtained judgment on 13th November 2018 before Kaniaru J declaring them owners of land parcels North Teso/Kocholia/2270, 2271 and 2268, ordering eviction of the defendants and removal of cautions, with each party to bear their own costs given the family nature of the dispute. The defendants' appeal, Civil Appeal No 4 of 2019, was dismissed by the Court of Appeal (Kiage, Tuiyott and Joel Ngugi JJA) on 9th May 2024 with no orders as to costs. The defendants nonetheless refused to vacate. The plaintiffs then filed a Notice of Motion dated 4th June 2024 seeking leave for new advocates to come on record, an order directing the Registrar of Busia Lands Registry to remove the cautions on parcels 2270 and 2271, and an order directing the OCS Malaba Police Station to supervise the eviction. The application was unopposed. Olao J allowed leave for the new advocates, noting the decree of 3rd January 2019 had not been drawn by the parties as required by Order 21 Rule 8(2), making implementation difficult. He directed the Land Registrar Busia to remove the cautions. On the police issue, applying Kamau Mucuha v The Ripples Ltd, he held police should not execute civil processes but may provide security and maintain order during evictions pursuant to Section 24 of the National Police Service Act, and allowed that prayer, requiring the eviction to be conducted lawfully and humanely. Following the earlier approach in the family dispute, each party was ordered to meet their own costs.

Key legal issues

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01

Removal of cautions after judgment

Holding

Where judgment declares the plaintiff absolute owner and orders removal of cautions, the court may direct the Land Registrar to lift the caution when defendants refuse to do so

Reasoning

The 2018 judgment granted the reliefs in prayers 10 and 10(A); cautions lodged by defendants can only be removed by them or by the Land Registrar. Since defendants refused, it was proper to direct the registrar, though the applicants confined the order to parcels 2270 and 2271.

p. 3
02

Role of police in execution of civil processes

Holding

Police are not to enforce civil decrees but may be ordered to provide security during eviction to preserve law and order

Reasoning

Relying on Kamau Mucuha v The Ripples Ltd, the court noted police should not be involved in securing compliance with court orders, but evictions of trespassers are dangerous and, under Section 24 of the National Police Service Act, police may provide security and maintain law and order during the process.

p. 4
03

Defective drawing of decree

Holding

The decree was not drawn by the plaintiffs as required by Order 21 Rule 8(2), which explains why fresh orders were sought

Reasoning

The decree issued on 3rd January 2019 captured the reliefs granted but was likely drawn by a registry officer rather than the party, contrary to Order 21 Rule 8(2). A properly drawn decree enables implementation organs to understand what is required.

p. 3

Legal principles established

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  • Although police should not be involved in executing civil processes, they may properly be directed to provide security and maintain law and order during evictions, pursuant to Section 24 of the National Police Service Act
  • A decree must be drawn in accordance with the judgment under Order 21 Rule 8(2) of the Civil Procedure Rules as it is a vital step in the execution process

Court orders

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  1. 1.The firm of Akiro & Associates Advocates granted leave to come on record for the 1st Plaintiff
  2. 2.An order directing the Land Registrar Busia to effect the removal and/or cancellation of the cautions lodged and registered on land parcels No North Teso/Kocholia/2270 and 2271
  3. 3.An order directing the OCS Malaba Police Station to provide security and ensure law and order during the eviction of the defendants, their relatives, agents and all those claiming through them from the said parcels, the eviction to be conducted in accordance with the law and in a humane manner without destruction of any property
  4. 4.Each party to meet their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 21 Rule 8(2)
  • Civil Procedure RulesOrder 21 Rule 28
  • National Police Service ActSection 24(a), (b) and (c)

Cases cited (1)

  • Kamau Mucuha v The Ripples Ltd
    C.A. Civil Application No NBI 186 of 1992 [1990-1994 EA 388] (1993 KLR 35)
On appeal from
Court of Appeal
Civil Appeal No 4 of 2019
Jurisdiction invoked
Order 51 of the Civil Procedure Rules; application for enforcement of decree in a suit previously determined by this court

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, "Jacka & another v Jacka & 3 others (Environment & Land Case 96 of 2013) [2024] KEELC 6535 (KLR)", Case Analysis (2024). Notice of Motion dated 4th June 2024 (arising from suit over land parcels N. Teso/Kocholia/2270, 2271 and 2268). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6535/eng@2024-10-08

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