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ELCAllowedNot stated in judgment (Notice of Motion dated 17th January, 2020)· [2021] KEELC 129 (KLR)

Joseph Musau Mwanzia v Richard Kasongo Ngoosa & another [2021] KEELC 129 (KLR)

Environment and Land Court
20 December 2021
COChristine Ochieng
1,089 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Machakos court ordered land occupants evicted, ruling that complaints which should have been raised on appeal cannot stop execution of a valid judgment.

What this practically means

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Executive summary

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The Plaintiff, Joseph Musau Mwanzia, moved the Environment and Land Court at Machakos by Notice of Motion dated 17th January 2020 under Order 22 Rule 20 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking an eviction order against the Defendants from a four-acre portion of MACHAKOS/KATHE-KAI BLOCK 5/173 awarded to him by a judgment and decree of the court, together with police security and costs. He deponed that a surveyor had demarcated his portion on 1st October 2019 and placed beacons, but the Defendants and their children trespassed onto the land, uprooted the beacons, denied him access, cultivated the land and injured his children. The Defendants, through a replying affidavit sworn by Richard Kasongo Ngoosa, acknowledged the judgment and professed willingness to abide by it, but denied trespass and contended that transfer and registration could not proceed pending Succession Cause No. 969 of 2009 concerning the estate of the alleged seller, David Ngoosa Mwau, and that the court lacked jurisdiction at that stage. The court framed a single issue: whether the Plaintiff was entitled to the orders sought. Holding that a valid, unchallenged judgment existed, that the matter was at execution stage, and that the Defendants' objections were mere excuses to delay execution of a valid decree, the court allowed the application, issuing an eviction order to be executed by a court bailiff or licensed auctioneer, directing the OCS and/or Ward Commander Machakos Police Station to provide security, and awarding the costs of the application and intended eviction to the Plaintiff against the Defendants. Judgment delivered virtually at Machakos on 20th December 2021 by Christine Ochieng, Judge.

Key legal issues

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01

Whether the Plaintiff is entitled to an eviction order and security in execution of a valid decree

Holding

Yes. There exists a valid, unchallenged judgment and decree awarding the Plaintiff four acres, and the Defendants' continuing trespass violates the court order; the objections raised are excuses.

Reasoning

The court noted the suit had been concluded and a decree extracted and issued in November 2018 directing survey, transfer and registration of four acres to the Plaintiff. The Defendants, as judgment debtors, did not show any appeal against that decision. The matter was at the execution stage and the Defendants offered no plausible reason for defying the court order by trespassing, uprooting beacons and cultivating the land. Their objections - including the pendency of a succession cause and alleged want of jurisdiction - were treated as excuses to delay execution of a valid decree.

p. 2

Legal principles established

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  • A party against whom a valid, unchallenged judgment exists cannot resist execution by raising issues that should have been pursued on appeal.

Court orders

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  1. 1.An eviction order be and is hereby issued evicting the Respondents from the Plaintiff's portion of land measuring four (4) acres comprised in the parcel of land known as MACHAKOS/KATHE-KAI BLOCK 5/173, to be executed by a Court Bailiff or licensed auctioneer
  2. 2.The OCS and/or Ward Commander Machakos Police Station be and is hereby directed to provide security
  3. 3.Costs of this application and the intended eviction be borne by the Defendant/Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 20
  • Civil Procedure ActSection 3A

Cases cited (2)

  • Samuel M N Mweru & Others v National Land Commission & 2 Others
    (2020) eKLR
  • Simon Parkoyiet Mokare v Peter Kokai & 3 Others
    (2020) eKLR
Jurisdiction invoked
Order 22 Rule 20 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Joseph Musau Mwanzia v Richard Kasongo Ngoosa & another [2021] KEELC 129 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 17th January, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/129/eng@2021-12-20

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