Patel & 2 others v Maccu Motors Limited & 11 others

RULING 1. The court through a notice of motion dated December 15, 2022 is asked to issue a demolition order on structures erected on LR No Meru Municipality/Block/11/50 and the OCS Meru police station directed to oer security during the eviction exercise. The grounds as contained on the face of the application and the supporting adavit of Time Karimi Yusuf sworn on December 15, 2022 are that: the temporary structures belong to her, were leased to some tenants over vacant possession; that they were ordered to vacate the land and hand it over to the plaintis. That despite notices issued to the tenants, they have declined to vacate as per copies annexed as TK “2”. The application was opposed through a replying adavit sworn by Cypriano Iburi Ngaruro on January 25, 2023, on behalf of the other plaintis on the basis that the applicant’s counterclaim having been dismissed, the alleged structures form part of the land and are appurtenant to the land decreed to them. That the application amounts to relitigating a matter afresh. 2. Further the application was opposed by Nancy Kaari a representative of the 20 tenants through her replying adavit sworn on January 30, 2023; she attached an authority to act and plead thereto. It was averred that there was no tenancy relationship between applicants since their landlord was the plainti herein to whom they pay rent. That it was averred that the tenants had led Meru CMCC No 808 of 2003 where they obtained restraining orders. That the structures on the land were erected by them with the consent of the plaintis at a huge cost hence they were strangers to the alleged notices and would suer grave prejudice if the application was allowed. 3. The application was also opposed by the 1st defendant through an adavit by its CEO Robert Muthamia sworn on January 16, 2023. He averred that there are pending applications and an appeal before the Court of Appeal Nyeri. That the order sought herein if allowed would prejudice them due to the pending appeal. Therefore, the 1st defendant urged the court to pend the demolition pending the hearing and determination of the appeal. 4. The court has carefully gone through the court records. The applicant herein had sought for a review of the judgment delivered on June 3, 2019. The court in a ruling dated July 28, 2021 made a nding that the applicant’s defence and the counterclaim stood dismissed in the said judgment. 5. The applicant herein was the 2nd defendant in the suit in which the plaintis were seeking vacant possession and mesne prots. By a defence and counterclaim dated November 28, 1997, the applicant among other defendants had sought for a declaration to invalidate the allocation of the suit land to the plaintis and a permanent injunction upon the death of the initial applicant her husband. Meru HCCC No 7 of 2004 was led seeking for the compensation of structures, led by the applicant was consolidated with this le becoming the running le. 6. Due to the foregoing, it is quite obvious that the application before court is not merited for the following reasons: i. First there is nothing that has been demonstrated in the nature of a decree directed at the applicant to hand over vacant possession. ii. Secondly, the applicants lost the counterclaim and a subsequent application for review was also dismissed. iii. Thirdly, the alleged tenants are not parties to this suit nor has the applicant sought to join them to this suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16474/eng@2023-03-22 2

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iv. Fourthly, no positive orders were made by the court against the applicant vis a vis against the alleged tenants. v. Fifthly, the decree holders have in their replying adavit indicated to the court that there are no structures on the suit land belonging to the applicant which they expect her to hand over and or perhaps tenants belonging to her who should vacate the land in favour of the decree holders. 7. On the contrary, the said tenants have sworn a replying adavit conrming that their landlord is the decree-holder and not the applicant. 8. Therefore, if there is no privity of contract between the applicant and the said tenants and more importantly, if the decree holders are not complaining that the applicant has not delivered upon any vacant possession as decreed it is illogical for the applicant to seek the court to issue orders in vain. 9. The decree holders have averred on oath that the tenants and the structures on the suit land do not belong to the applicant. They have not issued a notice to show cause to the applicant to deliver up vacant possession. The decree holders are the best suited to move the court against whoever is on the suit land. The applicant admitted that she was not on the suit land but other third parties who now own under whose authority they are on the land which was decreed to the plaintis. 10. Eviction and demolition are governed by sections 152a, 152b, 152d, 152e, f & g of the Land Act. Even if the court were to nd the applicant entitled to the prayers sought, still the notices attached hereto oend the said sections of the law and can only be issued by the decree holders. 11. The upshot is the application dated December 15, 2022 lacks merits and is hereby dismissed with costs. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT THIS 22ND DAY OF MARCH, 2023 In presence of: C/A: John Paul J.M Mwangi for plaintis Mwirigi B. for the 2nd applicant present HON. C.K. NZILI ELC JUDGE ELC 31 OF 2018 - RULING 0 https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16474/eng@2023-03-22 3

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