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ELCAllowedELC No. 323 of 2015

Njenga v Kariuki & another (Environment & Land Case 323 of 2015) [2025] KEELC 4238 (KLR)

Environment and Land Court
28 May 2025
MOMogeni
1,501 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Without a stay of execution, a Kenyan court will order eviction and even provide police security to enforce the judgment.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Thika (Mogeni J) determined a Notice of Motion dated 8/10/2024 by the plaintiff, Ruth Gathoni Njenga, seeking an order directing the Officer in Charge of Ruiru Police Station to provide security during execution of the decree in ELC No. 323 of 2015, judgment in which had been entered in her favour. The plaintiff had served the defendants with a notice to vacate dated 22/8/2024, which was not complied with. The 1st Defendant opposed the application in a replying affidavit, contending that Plot No. S90 at Githurai Ruiru does not exist; that the land is Title Number Ruiru Kiu Block 7/131 belonging to Anna Nyokabi Kenyatta; that he was swindled by the 2nd Defendant; and that the 2nd Defendant's director had been guilty of non-disclosure at trial. He suggested the plaintiff's remedy lay in specific performance or a refund against the 2nd Defendant, and sought dismissal or stay pending a review application. The plaintiff replied that these were new issues that could not be litigated in an execution application, that no appeal, review or stay was in place, and that she was entitled to enjoy the fruits of her judgment. The court found no stay of execution was in place and, applying Order 42 Rule 6(1) of the Civil Procedure Rules 2010 and the terms of the judgment and eviction notice, allowed the application. It issued an eviction order against the 1st and 2nd Respondents, with a warrant of eviction to issue in default, directed the OCS Ruiru Police Station to provide security during the eviction, and awarded costs of the application to the Applicant.

Questions the Court framed

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

  1. 1.Whether an order for eviction ought to issue in execution of the decree in the absence of a stay of execution
  2. 2.Whether the OCS Ruiru Police Station should provide security during execution of the decree

Key legal issues

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01

Entitlement to execute a decree where no stay is in place

Holding

The eviction prayer was merited because no stay of execution was in place and the eviction notice was not complied with.

Reasoning

The court noted there was no order of stay of execution. The judgment had ordered the Respondents to remove the fence, failing which the plaintiffs were authorized to do so. An eviction notice dated 22/8/2024 had been served and ignored. Applying Order 42 Rule 6(1) of the Civil Procedure Rules 2010, the court found the decree remained enforceable and the eviction prayer merited. The Respondent's averments about ownership of the land were treated as new matters that could not defeat a valid decree.

p. 3
02

Police assistance during execution

Holding

The court found the prayer for police security during eviction merited to maintain law and order.

Reasoning

Given that eviction involves the forceful removal of persons in occupation, the court held that security from the OCS Ruiru Police Station was necessary to ensure peace and order during the exercise, invoking Section 24 of the National Police Service Act.

p. 3

Legal principles established

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  • In the absence of an order of stay of execution, a decree-holder is at liberty to proceed with execution of the judgment.
  • A judgment debtor cannot resist execution by raising fresh defences not raised at trial where the decree has not been set aside or stayed.

Court orders

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  1. 1.An order for the eviction of the 1st and 2nd Respondents from the suit land, the Respondents to vacate and hand over vacant possession as decreed in the Judgment, in default of which a warrant of eviction shall issue for forceful eviction by a Court Bailiff or duly Licensed Auctioneer, costs borne by the Respondents
  2. 2.The OCS Ruiru Police Station to provide security and maintain peace and order during the eviction of the Defendants from the suit property
  3. 3.Costs of the Application awarded to the Applicant

The bench

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

MO
majority

Wrote the judgment

Jurisdiction invoked
Section 24 of the National Police Service Act; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules, 2010

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.

In the absence of an order of stay of execution of the Judgement and in view of the provisions of Order 42 Rule 6(1) of the Civil Procedure Rules 2010, the terms of the Judgement and the eviction Notice served, I find that the prayer for an eviction order is merited.
p. 3Execution of decree without stay
I find that the prayer is merited in order to maintain law and order, and to ensure security during the execution.
p. 3Police assistance in execution
An order for the eviction of the 1st and 2nd Respondents from the suit land is hereby issued. The Respondents to vacate and hand over vacant possession of the suit land parcel as decreed in the Judgment dated 6/07/2022 in default of which warrant of eviction shall issue for the forceful eviction of the Respondent from the suit land by a Court Bailifi or duly Licensed Auctioneer and the costs shall be borne by the Respondents.
p. 3Final orders - eviction and warrant of eviction

Issues in the judgment

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minor

The judgment date is stated inconsistently within the ruling - paragraph 2 says judgment was entered on 9/12/2022 while the final orders refer to a judgment dated 6/07/2022.

minor

The Respondent/1st Defendant is at one point described as 'the Appellant' although this is not an appeal.

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, "Njenga v Kariuki & another (Environment & Land Case 323 of 2015) [2025] KEELC 4238 (KLR)", Case Analysis (2025). ELC No. 323 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4238/eng@2025-05-28

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