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ELCAllowedApplication dated 3rd June 2025

Ndiege v Amuse & 59 others (Environment and Land Case E004 of 2023) [2025] KEELC 5930 (KLR)

Environment and Land Court
13 August 2025
2,492 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The court ordered police-backed eviction and demolition on the land, ruling that technical objections cannot delay enforcing a judgment when no stay of execution exists.

What this practically means

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Executive summary

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This is a post-judgment ruling of the Environment and Land Court delivered on 13th August 2025 by Hon. Dr. Iur F. Nyagaka, Judge, in a land dispute over parcel Suna West/Wasweta II/1037. The plaintiff, judgment creditor, applied on 3rd June 2025 seeking eviction of the defendants/judgment debtors through Ikimwanya Auctioneers, demolition of structures on the suit land, police security from the Officer Commanding Oruba Police Station, and costs, pursuant to Sections 3, 3A, 30 and 34 of the Civil Procedure Act and the Auctioneers Rules 1996. Judgment had been delivered on 2nd October 2024 ordering the defendants to vacate within 90 days; nine months later they remained, had subdivided the land and built new homes, and no stay of execution was in place. The defendants opposed through grounds of objection alleging non-compliance with Order 51 Rules 3 and 13 of the Civil Procedure Rules and that the application was frivolous and placed before the wrong forum, since Order 22 applications should be heard by the Deputy Registrar. The court held that service was effected and any defects of form were cured by Order 51 Rule 10 and Article 159(2)(d); that providing security for execution is not a ministerial act and properly lies before the judge, Order 49 Rule 7(1)(b) being permissive; and that the uncontroverted sworn testimony established resistance to execution. The court framed two issues: merit and costs. It found the application merited. Final orders directed Ikimwanya Auctioneers to evict the defendants and put the plaintiff into possession, demolish all structures, conduct the eviction in compliance with the law on evictions and respect for human rights and dignity, with the OCS Oruba Police Station providing security, and ordered the defendants to pay costs. The court further gave directions on a related application dated 14th July 2025, set down for hearing on 14th October 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application is merited
  2. 2.Who to meet the costs of the application

Key legal issues

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01

Whether non-compliance with Order 51 Rules 3 and 13 of the Civil Procedure Rules renders the application incompetent

Holding

No; the respondents were duly served and suffered no prejudice, and defects of form are cured by Article 159(2)(d) and Order 51 Rule 10

Reasoning

Counsel admitted service by the application being slipped under the door of the firm, which prompted the grounds of opposition; the opposition was halfhearted and an afterthought. Though the motion lacked the ex-parte warning wording, the respondents knew where and how to appear and in fact appeared. Order 51 Rule 10 bars defeat of an application for want of form, and Article 159(2)(d) requires substantive justice over technicalities.

02

Whether the application was placed in the wrong forum, before the judge instead of the Deputy Registrar

Holding

No; the application is not merely administrative but part of the execution process arising from the judgment, and is properly before the judge

Reasoning

Order 49 Rule 7(1)(b) uses the permissive word 'may', allowing election depending on circumstances. Providing security for execution is not a ministerial act but the core act of executing the judge's decree. No law bars the judge from handling processes delegated to the Deputy Registrar; the Deputy Registrar's functions are limited to what only the judge cannot do.

p. 4
03

Whether the decree should be executed by eviction and demolition

Holding

Yes; the judgment of 2nd October 2024 required the defendants to vacate within 90 days, there is no stay of execution, and resistance on the ground was deponed to and uncontroverted

Reasoning

Judgment was delivered on 2nd October 2024 and the defendants were to vacate within 90 days; nine months later they remained, had subdivided the land and constructed new homes. No stay of execution was in place despite a claimed intended appeal. The plaintiff's deposition on hostility and resistance stood uncontroverted by any replying affidavit and was therefore admitted.

p. 4

Legal principles established

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  • An application for provision of security for execution of a decree is not a ministerial act and does not lie before the Deputy Registrar; the manner of implementation of the decree is within the jurisdiction of the judge.
  • There is no law preventing a judge from handling a matter which the Deputy Registrar can handle, so long as it is not administrative in nature.
  • A fact deponed to on oath and not controverted by a replying affidavit is taken as admitted and cannot be refuted by submissions.

Court orders

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  1. 1.M/S. Ikimwanya Auctioneers to evict the Defendants/Judgment Debtors forthwith from Suna West/Wasweta II/1037 and put the Plaintiff into possession
  2. 2.The Auctioneers to demolish all structures constructed on land parcel number Suna West/Wasweta II/1037
  3. 3.Execution of the decree to be carried out in compliance with the law or procedures on evictions and respect of human rights and dignity
  4. 4.The Officer Commanding Oruba Police Station to provide security to M/S Ikimwanya Auctioneers to carry out the eviction and demolition
  5. 5.Costs of the application to be paid by the defendants
  6. 6.Directions on the application dated 14th July 2025: Respondent to respond within 14 days; Applicants 21 days to submit; Respondent 21 days to submit; submissions not to exceed 3 pages; hearing on 14th October 2025

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 3, 3A, 30 and 34 of the Civil Procedure Act, Chapter 21 Laws of Kenya and Rule 9(a), (b) and c(2) and 12(b) of the Auctioneers Rules 1996

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

M/S. Ikimwanya Auctioneers do evict the Defendants/ Judgment debtors forthwith from all that parcel of land, namely, Suna West/Wasweta II /1037and put the Plaintifi onto possession of the land parcel.
p. 5final orders - eviction and possession
The execution of the decree herein by way of eviction of the Defendants and the demolition of the structures erected by them or their servants and/ or agents be carried out in compliance with the law or procedures on evictions and respect of human rights and dignity.
p. 5final orders - lawful eviction and human dignity
The manner of implementation of the decree is squarely within the jurisdiction of the judge.
p. 4jurisdiction over execution
Once a fact is on oath and it is not controverted by way of another oath or affidavit the fact is taken in law to be admitted by the adverse party.
p. 4uncontroverted affidavit evidence

Issues in the judgment

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minor

Applicant and respondents referred to inconsistently; the application is described as opposed by 'the Applicant' in paragraph 11 although it is the Respondents who raised the technicalities

minor

Court identities/plaintiff name: the deponent Joseph Obiero Ndiege is described interchangeably as decree holder; court name and case number not stated in the extracted text

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, "Ndiege v Amuse & 59 others (Environment and Land Case E004 of 2023) [2025] KEELC 5930 (KLR)", Case Analysis (2025). Application dated 3rd June 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5930/eng@2025-08-13

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