Application
Hamco Limited the Decree holder herein has come to this court with a Notice of Motion dated 20th February 2025 seeking orders that the Honorable Court be pleased to issue an order of eviction of the Judgment debtor /Respondent from land parcel No LR No. 498/533 as per the judgment delivered on 3rd December 2019 and give exclusive vacant occupation and use to the parcel of land to the Decree Holder/Applicant.That the Honorable Court be pleased to order the Officer Commanding Station Eldama Ravine Police Station to give security for execution of the Eviction Order on parcel Nos LR498/533.
The Judgment Debtor/Respondent be ordered to pay the costs of the eviction exercise that may be incurred by the Decree Holder Applicant. Any other relief that the Court may deem fit to grant. The application is made on the following grounds that the Honorable court delivered its judgment on the instant suit on December; 2019 and declared that the applicant is the rightful owner of the suit property LR 498/533. Judgment debtor/respondent preferred an appeal to the Court of Appeal which was dismissed when the Court delivered its judgment on 8th November 2024.
That despite the order given by the Court and the Court of Appeal, the judgment debtor Respondent has refused to give the applicant vacant possession. Pursuant to this Honorable Court’s judgment dated 3rd December 2019, the court had ordered the Respondent to give vacant possession of he disputed land to the applicant herein within 30 days from the date of judgment and if he does not do so an order of eviction to be issued.
The judgment debtor/Respondent has been served with an eviction notice but has continued to disregard the order. The Decree Holder/applicant is bound to suffer irreparable harm if the application is not allowed as prayed.
The application is supported by the affidavit of Nelson Mutai an advocate of the High Court of Kenya in conduct of this matter on behalf of Decree Holder/Applicant duly authorized to swear this affidavit. He states that despite orders issued by this Honorable Court, the Judgment debtor/Respondent has blatantly refused and/or neglected to give vacant possession of parcel no LR No; 498/533 to the Decree holder thereby frustrating the implementation of court’s orders.
The Honorable Court, in its judgment dated 3rd December 2019, unequivocally ruled that the title deed of the Judgment debtor/Respondent, which read Eldama Ravine-Township 1/493, was cancelled Consequently the said Judgment Debtor/Respondent was found to lack any proprietary rights or interest in the disputed property The court Decreed that LR 498/533 belongs to the applicant.
The court, in the same judgment, expressly ordered the judgment debtor; Respondent to give possession of the parcel no LR Nov 498/533 within thirty (30) days from the date of the judgment. It was ordered that should the Judgment Debtor fail to comply within the stipulated period, an eviction order would issue. The Judgment debtor/Respondent opted to prefer an appeal, however the Court of Appeal vide its judgment dated, 8th November 2024; dismissed the said appeal; thus reaffirming the initial orders by this court.
He served the judgment debtor/Respondent with an eviction notice, together with the court of appeal judgment. The judgment debtor Respondent has willfully failed to comply and continues to occupy the suit property in utter disregard of the court directive.
The judgment debtor respondent has demonstrated clear contempt for the authority of the Honorable court by refusing to vacate the parcel No.LR 489/533 despite the lapse of all reasonable and legally mandated timelines.
It has come apparent that the judgment debtor/Respondent has no intention of vacating the suit property voluntarily and therefore, unless forcefully evicted he will continue to remain unlawful occupation of the property. Due to the said unlawful occupation and blatant disobedience of court order, Decree Holder/applicant as the lawful owner of the suit property have been unable to take possession and make a meaningful use of my land as intended. The continued unlawful occupation by the judgment debtor Respondent has occasioned the applicant great inconvenience, loss and undue suffering and it is in the interest of justice that the said judgment debtor /Respondent be evicted forthwith. The honorable court has the inherent power to issue the orders sought in order to uphold the rule of law, protect the applicant’s constitutionally enshrined right to own property, and safeguard the integrity of the Court’s orders.
The applicant is bound to suffer irreparable harm if the application is not allowed as prayed.
Responce
In the replying affidavit of Jackson K Ruto , he states that the affidavit in support of the application that has been served upon him has not been commissioned thereby rendering it invalid and legally incompetent. He has never been served with the alleged eviction notice dated 11th November 2024. He does not operate from the suit premises the subject of the instant application but only from his adjacent properties and know for a fact since he is daily on the ground that the applicant has never visited the suit property since delivery of the Court of Appeal judgment either for the purpose of taking occupation thereof or at all and the applicant has never asked the judgment debtor to do anything to aid it in that regard which he has declined.
The order for his eviction from the suit premises was explicitly made at paragraph 23 (c) of the judgment dated 3rd December 2019 and since the applicant has not sought to take possession of the suit property and met resistance the instant application is utterly superfluous.
Determination
I have considered the application and the replying affidavit and do agree with the respondent that the application is supported by an affidavit that is not commissioned. Non-commissioned affidavits are not recognized by legal standards as they must be commissioned by a Commissioner of Oaths or a similar authorized official. And therefore the same is irregular and subject to be struck out and is hereby struck out with no orders as to costs.
Hamco Limited the Decree holder herein has come to this court with a Notice of Motion dated 20th February 2025 seeking orders that the Honorable Court be pleased to issue an order of eviction of the Judgment debtor /Respondent from land parcel No LR No. 498/533 as per the judgment delivered on 3rd December 2019 and give exclusive vacant occupation and use to the parcel of land to the Decree Holder/Applicant.That the Honorable Court be pleased to order the Officer Commanding Station Eldama Ravine Police Station to give security for execution of the Eviction Order on parcel Nos LR498/533.
The Judgment Debtor/Respondent be ordered to pay the costs of the eviction exercise that may be incurred by the Decree Holder Applicant. Any other relief that the Court may deem fit to grant. The application is made on the following grounds that the Honorable court delivered its judgment on the instant suit on December; 2019 and declared that the applicant is the rightful owner of the suit property LR 498/533. Judgment debtor/respondent preferred an appeal to the Court of Appeal which was dismissed when the Court delivered its judgment on 8th November 2024.
That despite the order given by the Court and the Court of Appeal, the judgment debtor Respondent has refused to give the applicant vacant possession. Pursuant to this Honorable Court’s judgment dated 3rd December 2019, the court had ordered the Respondent to give vacant possession of he disputed land to the applicant herein within 30 days from the date of judgment and if he does not do so an order of eviction to be issued.
The judgment debtor/Respondent has been served with an eviction notice but has continued to disregard the order. The Decree Holder/applicant is bound to suffer irreparable harm if the application is not allowed as prayed.
The application is supported by the affidavit of Nelson Mutai an advocate of the High Court of Kenya in conduct of this matter on behalf of Decree Holder/Applicant duly authorized to swear this affidavit. He states that despite orders issued by this Honorable Court, the Judgment debtor/Respondent has blatantly refused and/or neglected to give vacant possession of parcel no LR No; 498/533 to the Decree holder thereby frustrating the implementation of court’s orders.
The Honorable Court, in its judgment dated 3rd December 2019, unequivocally ruled that the title deed of the Judgment debtor/Respondent, which read Eldama Ravine-Township 1/493, was cancelled Consequently the said Judgment Debtor/Respondent was found to lack any proprietary rights or interest in the disputed property The court Decreed that LR 498/533 belongs to the applicant.
The court, in the same judgment, expressly ordered the judgment debtor; Respondent to give possession of the parcel no LR Nov 498/533 within thirty (30) days from the date of the judgment. It was ordered that should the Judgment Debtor fail to comply within the stipulated period, an eviction order would issue. The Judgment debtor/Respondent opted to prefer an appeal, however the Court of Appeal vide its judgment dated, 8th November 2024; dismissed the said appeal; thus reaffirming the initial orders by this court.
He served the judgment debtor/Respondent with an eviction notice, together with the court of appeal judgment. The judgment debtor Respondent has willfully failed to comply and continues to occupy the suit property in utter disregard of the court directive.
The judgment debtor respondent has demonstrated clear contempt for the authority of the Honorable court by refusing to vacate the parcel No.LR 489/533 despite the lapse of all reasonable and legally mandated timelines.
It has come apparent that the judgment debtor/Respondent has no intention of vacating the suit property voluntarily and therefore, unless forcefully evicted he will continue to remain unlawful occupation of the property. Due to the said unlawful occupation and blatant disobedience of court order, Decree Holder/applicant as the lawful owner of the suit property have been unable to take possession and make a meaningful use of my land as intended. The continued unlawful occupation by the judgment debtor Respondent has occasioned the applicant great inconvenience, loss and undue suffering and it is in the interest of justice that the said judgment debtor /Respondent be evicted forthwith. The honorable court has the inherent power to issue the orders sought in order to uphold the rule of law, protect the applicant’s constitutionally enshrined right to own property, and safeguard the integrity of the Court’s orders.
The applicant is bound to suffer irreparable harm if the application is not allowed as prayed.
Responce
In the replying affidavit of Jackson K Ruto , he states that the affidavit in support of the application that has been served upon him has not been commissioned thereby rendering it invalid and legally incompetent. He has never been served with the alleged eviction notice dated 11th November 2024. He does not operate from the suit premises the subject of the instant application but only from his adjacent properties and know for a fact since he is daily on the ground that the applicant has never visited the suit property since delivery of the Court of Appeal judgment either for the purpose of taking occupation thereof or at all and the applicant has never asked the judgment debtor to do anything to aid it in that regard which he has declined.
The order for his eviction from the suit premises was explicitly made at paragraph 23 (c) of the judgment dated 3rd December 2019 and since the applicant has not sought to take possession of the suit property and met resistance the instant application is utterly superfluous.
Determination
I have considered the application and the replying affidavit and do agree with the respondent that the application is supported by an affidavit that is not commissioned. Non-commissioned affidavits are not recognized by legal standards as they must be commissioned by a Commissioner of Oaths or a similar authorized official. And therefore the same is irregular and subject to be struck out and is hereby struck out with no orders as to costs.