Cyrus Anyona Ogwankwa v Verusmauti Nyaruri & 5 Others

b. THAT the Honourable Court be pleased to order the Deputy Registrar to sign and issue eviction warrants against the respondents/judgement debtors. c. THAT the Honourable Court be pleased to declare the Respondent as contemnors in respect of order number 5 of this Honourable Court issued on the 22nd of February 2023. d. THAT the Deputy Registrar’s refusal be deemed to be deliberate defiance of the Court order and is susceptible to contempt proceedings. e. THAT the Court be pleased to order the officer commanding Nyamarambe Police Station to provide security to an auctioneer to evict the Respondents from the Suit Property L.R. SOUTH MUGIRANGO BOIKANGA/ 1342. f. THAT in the event the respondents resist eviction, they be arrested and sent to prison for 30 days. g. THAT the respondent be prevented from removing any crops, (flora/fauna) that shall be found on the Suit Property which they have continued to excavate regardless of the orders of this Court issued on 22nd February 2023. h. 2. THAT costs of this application be borne by the Respondents. The Plaintiff’s application is premised on the grounds that the Respondents have failed to vacate the Suit Land despite exhausting their

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appeal and being served with a valid decree. The Plaintiff also faults the Deputy Registrar for directing that his request for eviction orders be heard by way of an application. In the Supporting Affidavit, the Plaintiff deposes that the Respondents have not only ignored the Court’s order to vacate the Suit Land within 90 days of the Court’s judgment of 22 nd February 2023, but they have also wasted the land by cutting down trees and planting maize, sugarcane, and coffee on the land. The Plaintiff further deposes that the Court’s decree in the suit is self-executing; thus, there was no need for further arguments or submissions on execution. 3. The Defendant’s response to the application is dated 1 st July 2026. Within the provisions of Order 51 Rule 14 of the Civil Procedure Rules, 2010, the response is definitely not a replying affidavit and it is also not a notice of preliminary objection. At best, it could be a statement of grounds of opposition, though it is not labelled/headed as such. 4. In the response filed by the firm of S.M. Sagwe & Co. Advocates, it is stated that the Plaintiff’s application commenced in person is defective because the firm of Wesonga & Co. Advocates remains on record for the Plaintiff. Mr Sagwe also states that it has been proven that the Plaintiff forged the Chief’s letter that enabled him to file the present suit. In addition, the Succession Cause Number 1 of 2025 before the Chief Magistrates Court at Etago, in which the Plaintiff is a petitioner, was

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dismissed after it was proved that the Plaintiff relied on a forged Chief’s letter. Mr Sagwe further states that a decree can be varied or reviewed. SUBMISSIONS 5. In his written submissions dated 1st July 2026, in opposition to the application, Mr Sagwe, learned Counsel, submits that it has been discovered that the Plaintiff forged the Chief’s letter, which enabled him to obtain a grant ad litem for the purpose of filing the present suit. He relies on the Courts’ holdings in Arthi Highway Developers Limited vs. Westend Butchery Limited & 6 Others (2015) eKLR and Macfoy vs. United Africa Co. LTD (1961) 3 ALL ER 1169 to argue that a forged document cannot form the basis of valid subsequent legal steps. ISSUES FOR DETERMINATION 6. Having considered the application, response, submissions, and the applicable law, the following are the issues falling for determination: 7. a. Whether the application is merited. b. Who is to bear the costs of the application. Aggrieved by the judgment rendered in this matter on 22nd February 2023, the Defendants appealed from Justice Munyao’s judgment to the Court of Appeal, but their appeal was dismissed. 8. The Plaintiff now seeks to realise the fruits of the judgment rendered in his favour. He asks the Court to find the Defendants in contempt for

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failing to vacate the Suit Land in accordance with the Court’s judgment and decree. The Court’s judgment is clear that, on the Defendants’ failure to give vacant possession of the Suit Land, the appropriate remedy is eviction. In this regard, the Plaintiff states that he applied for eviction orders, but the Deputy Registrar directed the parties to file submissions instead of signing the eviction warrants. He deposed in his affidavit that the decree in the matter is self-executing, and thus no arguments by the parties were necessary for the eviction warrants to be signed. 9. In directing the parties to file submissions on the Plaintiff’s application for eviction orders, the Deputy Registrar may have had in mind Order 22 Rule 18 of the Civil Procedure Rules, 2010 which provides as follows: “(1) Where an application for execution is made— (a) more than one year after the date of the decree; (b) ...........................................; or (c) ..................................................., the court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him: Provided that no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution if the application is

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made within one year from the date of the last order against the party against whom the execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the court has ordered execution to issue against him:” 10. The last order in the matter is the Court of Appeal’s dismissal of the appeal, but the date of dismissal is not stated by either side. The decree attached to the Plaintiff’s application is dated 20th June 2023. At the time of making the present application, more than a year may have passed since the last order of the Court in the matter, thus, it was necessary for a notice to show cause to be issued to the Defendants to show why the decree should not be executed against them. 11. There is no evidence before the Court that a formal notice to show cause was issued to the Defendants but they have responded to the Plaintiff’s application for issuance of eviction orders. The Defendants, through their Advocate, challenge the application and argue that the letters of administration issued to the Plaintiff in MCSUCC/E001/2025- In the Estate of Onkundi Monyinyo- were revoked after it was proved that the Plaintiff had forged the Chief’s letter that allowed him to apply for a grant ad litem and later on the letters of administration.

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12. The filed response is neither a replying affidavit, grounds of opposition nor an application, but it purports to carry evidence for the Court’s consideration. On whether such evidence is properly placed before the Court, Angote J. in Mbalanya v Waema [2017] KEELC 3356 (KLR) stated that: “15. It is trite in law that an Affidavit and the annextures attached on it constitute evidence. Indeed, where a person seeks to proof a fact by way of Affidavit, he is obligated to exhibit any document on his Affidavit. 16. However, before such a document can be received in evidence by the court, the law requires that such a document must be sealed by the Commissioner for Oaths. 21. In the instant case, the law has provided in mandatory terms the manner in which evidence by way of annextures can be received by the court. The failure to comply with that law, like in the instant case, can only lead to one thing, the striking out of the offending documents.” 13. The Defendants’ response is not a sworn replying affidavit and, as such, it cannot properly introduce annexures as evidence in support of the matters deponed therein. In the circumstances, the Court benevolently treating the response as grounds of opposition cannot rely upon the documents annexed thereto as evidence in support of the Defendants’ factual

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assertions. Consequently, the allegations contained in the response dated 1st July 2026 remain unproved and cannot, in themselves, avail the Defendants a basis for resisting the Plaintiff’s execution of the decree dated 20th June 2023. 14. In any event, even if those allegations had been properly proved, they would not, absent a subsisting order varying or setting aside the judgment and decree, operate to fetter the Plaintiff’s right to realise the fruits of his judgment. 15. In the end, the Plaintiff’s application is allowed to the extent that eviction orders shall issue in terms of the decree of this court, and the O.C.S., Nyamarambe Police Station shall provide the necessary security to facilitate execution, enforcement, and/or implementation of the eviction orders so the Plaintiff can enjoy the fruits of his judgment. Dated, signed and delivered at Kisii this 1st day of October, 2026 A. OMOLLO JUDGE

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