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ELCAllowedNot stated in the judgment· [2025] KEELC 3081 (KLR)

Kamula & 2 others v Mwololo & another (Environment & Land Case 24 of 2018) [2025] KEELC 3081 (KLR)

Not stated in the judgment (sitting at Makueni; matter concerns Makueni/Emali Town 234)
3 April 2025
EOE. O. OBAGA
742 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered an appealing buyer-turned-defendant evicted immediately because his stay of execution application had already failed.

What this practically means

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Executive summary

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The Decree Holders/Applicants moved the court by Notice of Motion dated 5th August, 2024 seeking an order of eviction of the 1st Respondent from LR No. Makueni/Emali Town 234 pursuant to a decree dated 12th May, 2022, in which the court decreed the property belonged to them. They further sought that the eviction be conducted by a Court Bailiff or an Auctioneer of their appointment, and that the OCS Emali Police Station provide security. They explained that on 22nd May, 2024 the court in Judicial Review application No. E005 of 2023 directed the Land Registrar to register the property in their names, that the Respondent executed transfer forms but refused to vacate and continues to collect rent, and that the Kshs.300,000/= balance due to the Respondent would be offset from taxed costs. The Respondent opposed, contending the application was premature because he had filed an appeal which was yet to be determined, and that he would give vacant possession once the appeal was decided. The Applicants noted in a supplementary affidavit that the Respondent's stay of execution application in the Court of Appeal had been dismissed with costs, the court finding no arguable grounds. The court framed a single issue: whether eviction orders should issue. It noted the undisputed sale, the undisclosed charge to Sidian Bank Limited, the offset arrangement for the Kshs.300,000/=, and the Respondent's continued collection of rent despite orders to deposit rental income in court. Holding there was no reason for the Respondent to remain on the property, the court allowed the application in terms of prayers 2, 3, 4 and 5.

Key legal issues

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01

Whether eviction orders should issue against the judgment debtor pending his appeal

Holding

The application was allowed; eviction orders issued because there were no orders staying execution of the decree, the Court of Appeal had dismissed the Respondent's stay application for lack of arguable grounds, and the Respondent continued collecting rent in defiance of orders to deposit rental income in court.

Reasoning

It was uncontested that the Respondent sold the suit property to the Applicants, and the transfer failed only because of an undisclosed charge to Sidian Bank Limited. The outstanding Kshs.300,000/= balance would be offset from the taxed costs, which the Respondent did not oppose. Given the dismissed stay application and the Respondent's continued collection of rent contrary to court orders, the court found no basis for his continued occupation and allowed the application.

p. 2

Legal principles established

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  • Where a decree-holder has obtained a decree and the judgment debtor's application for stay of execution has been dismissed for lack of arguable grounds, the judgment debtor cannot remain in possession of the suit property.

Court orders

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  1. 1.An order of eviction issued against the 1st Respondent, his agents, assigns, heirs and/or servants, to immediately vacate LR No. Makueni/Emali Town 234 pursuant to the Decree dated 12th May, 2022 (prayer 2)
  2. 2.Eviction from LR No. Makueni/Emali Town 234 to be conducted either by the Court Bailiff or an Auctioneer to be appointed by the Applicant (prayer 3)
  3. 3.The Officer Commanding Emali Police Station authorized to enforce compliance of the eviction order by providing security to the Court Bailiff/Auctioneer (prayer 4)
Jurisdiction invoked
Enforcement of the court's own decree dated 12th May, 2022; not expressly stated in the judgment

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, "Kamula & 2 others v Mwololo & another (Environment & Land Case 24 of 2018) [2025] KEELC 3081 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3081/eng@2025-04-03

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