Rimberia (Suing through her Attorney) & another v Bashan & 19 others (Environment & Land Case 61 of 2006) [2025] KEELC 290 (KLR)
The bottom line
#A Kenyan court allowed a landowner to evict occupants and demolish their structures under a 2013 judgment, rejecting late attempts to reopen the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff could enforce the 2013 decree by eviction and demolition notwithstanding the expiry of the lease
The application was allowed. The court held that the decree permitted demolition of the defendants' structures at the defendants' costs, and eviction pursuant to Section 152E of the Land Act
The court invoked Section 38 of the Civil Procedure Act and Order 22 Rule 28(5), which permit the court to direct that an act required by a decree be done by the decree holder at the judgment debtor's cost. Since the defendants had not obtained a stay of the judgment, courts do not issue orders in vain; the structures had to be removed. The authority of Grace Maundu Kilungya was applied. The plaintiff's pursuit of lease renewal did not defeat execution of the subsisting decree.
Whether a stay of proceedings, judgment and decree should issue pending the defendants' application
Stay refused. The test for stay of proceedings is high and stringent, and the defendants did not address the court on why it should be granted
Relying on Kenya Wildlife Service v Mutembei, Global Tours & Travels and David Morton Silverstein, the court held that stay of proceedings seriously interferes with a litigant's right to conduct litigation and access to justice, and is granted sparingly in exceptional cases. The defendants sought to stay proceedings in a suit separate and distinct from the instant suit and gave no grounds warranting the orders. Judicial time is a resource to be managed efficiently.
Whether the defendants made a case for review of the 2013 judgment on the ground of the expired lease as a new issue
Review refused. The lease expiry was known and documented; the application was an attempt to re-open a concluded matter and was brought with inordinate delay
Applying Section 80 CPC and Order 45 Rule 1, and the principles in Parliamentary Service Commission v Wambora (quoting Mbogo v Shah), National Bank of Kenya v Ndungu Njau and Republic v Advocates Disciplinary Tribunal ex parte Apollo Mboya, the court held the lease term and expiry were evident from the title produced at trial, so no new and important matter was discovered after due diligence. Allowing the application would re-open the case afresh contrary to the finality of litigation.
Costs of the two applications
The court reserved its discretion and made no order as to costs despite the general rule that costs follow the event
The court accepted the principle in Section 27(1) of the Civil Procedure Act that costs follow the event, citing Jasbir Rai Singh and Cecilia Karuru Ngayo, but expressly reserved its discretion not to award costs in the circumstances of the case.
Legal principles established
#- Where a decree has issued and has not been stayed, the court may order execution including eviction and demolition, with the act done by the decree holder at the judgment debtor's costs
- Stay of proceedings is a grave judicial action to be granted sparingly and only in exceptional cases
- Review will only be allowed on strong grounds; allowing an application that re-opens a concluded case afresh is impermissible as litigation must come to an end
Court orders
#- 1.The Notice of Motion application by the Plaintiff/Applicant dated 15th March, 2024 be and is hereby found to have merit and is hereby allowed
- 2.The Notice of Motion application by the Defendants/Applicants dated 28th August, 2024 be and is hereby found to lack merit and is hereby dismissed
- 3.Orders of legal eviction and demolition granted against the Defendants from the Plaintiff's land parcel No. Mombasa MS/Block1/237 pursuant to Section 152E of the Land Act, No. 6 of 2012
- 4.The Officer Commanding Likoni Police Station (OCS) ordered to offer security to the auctioneers appointed by the Applicant in carrying out the lawful eviction and demolition exercise and maintain law and order
- 5.There shall be no orders as to costs
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act, Cap. 21; Order 22 Rules 22 and 29(1) Civil Procedure Rules, 2010; Section 80 and Order 45 Civil Procedure Act and Rules; Article 40 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rimberia (Suing through her Attorney) & another v Bashan & 19 others (Environment & Land Case 61 of 2006) [2025] KEELC 290 (KLR)", Case Analysis (2025). HCC No. 61 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/290/eng@2025-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.