Cyrus Anyona Ogwankwa v Verusmauti Nyaruri & 5 Others
The bottom line
#The Kisii Environment and Land Court allowed a landowner's eviction of occupants from his land, but refused to punish anyone for contempt.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application is merited.
- 2.Who is to bear the costs of the application.
Key legal issues
#Whether the application for eviction warrants and contempt findings was merited
Allowed only to the extent of eviction in terms of the decree with police security; contempt and ancillary prayers not granted
The court held the decree, affirmed on appeal, entitled the plaintiff to eviction. Because more than a year may have elapsed since the last order, a notice to show cause under Order 22 Rule 18 was necessary. The defendants' response was not a sworn affidavit, so their allegations of forgery and revocation of the grant remained unproved and could not resist execution.
Evidentiary status of the defendants' unsworn response
Treated benevolently as grounds of opposition, but annexures thereto cannot be relied on as evidence
The response was neither a replying affidavit nor a notice of preliminary objection. Relying on Mbalanya v Waema, the court held an affidavit and annexures constitute evidence, and unsealed/unsworn documents cannot be received; hence the forgery and revocation allegations were unproved.
Legal principles established
#- Where an application for execution is made more than one year after the date of the decree, a notice to show cause must issue to the judgment-debtor before execution
- An unsworn response that is not a replying affidavit cannot properly introduce annexures as evidence; allegations therein remain unproved
- Absent a subsisting order varying or setting aside a judgment and decree, allegations against a decree cannot fetter the decree-holder's right to realise the fruits of the judgment
Court orders
#- 1.Eviction orders shall issue in terms of the decree of the court
- 2.The O.C.S., Nyamarambe Police Station shall provide the necessary security to facilitate execution, enforcement and/or implementation of the eviction orders
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution of Kenya, 2010; Sections 38(a) Civil Procedure Act and Order 22 Rules 80, 81(1), 83, Order 49 Rule 1, Order 51 Rule 1 of the Civil Procedure Rules, 2010
Relief refused
#Declaration that the Respondents are contemnors in respect of the order of 22nd February 2023
The court did not address or grant the contempt declarations sought; it confined relief to eviction in terms of the decree
Order that the Deputy Registrar's refusal be deemed deliberate defiance susceptible to contempt proceedings
Not granted; the court instead found a notice to show cause under Order 22 Rule 18 was necessary before execution
Arrest and imprisonment of the respondents for 30 days if they resist eviction
Not granted in the final orders
Order preventing respondents from removing crops (flora/fauna) from the suit property
Not granted in the final orders
Costs of the application borne by the Respondents
No express costs order was made in the ruling
Costs
No express costs order made in the ruling.
Quotable passages
#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 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.
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.
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.
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.
Issues in the judgment
#Court finds a notice to show cause was necessary for execution, yet allows eviction warrants to issue without recording that such notice was issued
Contempt declarations sought in prayers (c) and (d) are not addressed or determined in the ruling
Defendant's name appears as 'Nyaruri' in the caption but 'Nyaruru' in the body
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cyrus Anyona Ogwankwa v Verusmauti Nyaruri & 5 Others", Case Analysis (2026). ELC Case No. 75 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6238/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.