INTRODUCTION
This ruling is in respect to the Applicants’ Notice of Motion dated 28th March, 2025 seeking the following orders:
1. THAT this court issues an order to the 2nd plaintiff/respondent requiring her to deliver vacant possession of the parcel of land known as MITI MINGI/MBARUK 5/36 and/or all the subdivisions thereof within (30) days from the date of the order of the court.
2. THAT in default of delivery of vacant possession within the aforesaid period, this court issues an order to detain the 2nd plaintiff/respondent in prison for a period of (30) days and any structure erected upon the parcel of land be demolished by the applicant.
3. THAT costs of this application be borne by the 2nd plaintiff/respondent.
The application is based on the grounds on its face and supported by the affidavit sworn by the Applicant on 28th March, 2025. He stated that the plaintiff filed the present suit challenging his title and ownership of the parcel of land known as MITI MINGI/MBARUK BLOCK 5/36. He further stated the plaintiffs failed to appear and the case was dismissed after which the court considered his counterclaim and issued an order of eviction from the subdivision to which the plaintiff had occupied. He stated that upon issuance of the eviction order, the 2nd plaintiff/respondent was given (120) days to vacate from the land but she instead relocated to a different portion of land which he had sold to one Julia Njambi Kinyanjui. He added that the 2nd plaintiff has been sued by Julia for trespass. He further stated that since the plaintiff’s suit was dismissed, she had no right to occupy any portion of the land and that she ought to vacate. He stated that as advised by his advocates, when a judgment debtor obstructs execution of a decree, the court can order vacation from the land and in default, committal to prison for (30) days.
RESPONDENT’S RESPONSE
In response to the application, the Plaintiff/Respondent filed a replying affidavit sworn on 27th November, 2025 where she averred that the Applicant’s counter claim only succeeded in respect to only one portion being Miti Mingi/Mbaruk Block 5/4253.
She further averred that he issues raised by the Applicant did not relate to execution of the orders issued so as to bring them within the operation of Section 34 of the Civil Procedure Act. She averred that at the time of filing the suit, the parcel of land known as Miti Mingi/Mbaruk Block 5/4253 was not in existence as the same had been subdivided in 2013. She further averred that after delivery of the judgment, the Applicant applied for execution which was done and that she moved out of the parcel of land. She added that there was no suit parcel in existence known as Miti Mingi/Mbaruk Block 5/36 thus the application was misplaced. She averred that the Applicant seeks eviction for parcels which are not part of the suit or portions the court never issued an order touching on them.
She urged the court to dismiss the application with costs.
Submissions
None of the parties filed submissions to the application.
ANALYSIS AND DETERMINATION
This court has considered the application and the main issue for determination is whether the application is merited.
It is not in dispute that the Respondents filed this suit against the Applicant and judgment was delivered on 8th February, 2017. It is also not in dispute that the said judgment directed the Respondents to give vacant possession of the suit property to the Applicant within 90 days failure which the Respondent was at liberty to apply for eviction.
Notably, from the court record, there was a court order where counsel for both parties agreed that the Respondents voluntarily vacate the suit parcel within 120 days from 27th October, 2020 failure which eviction to issue upon application. The Applicant claims that the Respondents instead relocated to a different portion of land which the Applicant had sold to one Julia Njambi Kinyanjui. The Respondents on the other hand contends that she already vacated the parcel of land. It was also their contention that the application was misplaceD since there was no suit parcel in existence known as Miti Mingi/Mbaruk Block 5/36 as alleged.
It is not in dispute that MITI MINGI/MBARUK 5/36 was the original suit property prior to subdivision. It is also not in dispute that the Applicant has sought for eviction orders from MITI MINGI/MBARUK 5/36 and/or all the subdivisions. It is therefore this court’s view that the Respondents argument does not hold water since the Applicant has expressly sought for eviction orders from the sub divisions of Block 5/36 which includes Miti Mingi/Mbaruk Block 5/4253.
Consequently, it is this court’s view that the application is merited and I allow the same as prayed. The Respondent is hereby directed to vacate the suit parcel within 30 days failure which the Applicant is at liberty to involve the court bailiff or auctioneers to be assisted by the relevant police department in execution of the eviction. The Respondents shall bear the costs of this application. Orders accordingly.
This ruling is in respect to the Applicants’ Notice of Motion dated 28th March, 2025 seeking the following orders:
1. THAT this court issues an order to the 2nd plaintiff/respondent requiring her to deliver vacant possession of the parcel of land known as MITI MINGI/MBARUK 5/36 and/or all the subdivisions thereof within (30) days from the date of the order of the court.
2. THAT in default of delivery of vacant possession within the aforesaid period, this court issues an order to detain the 2nd plaintiff/respondent in prison for a period of (30) days and any structure erected upon the parcel of land be demolished by the applicant.
3. THAT costs of this application be borne by the 2nd plaintiff/respondent.
The application is based on the grounds on its face and supported by the affidavit sworn by the Applicant on 28th March, 2025. He stated that the plaintiff filed the present suit challenging his title and ownership of the parcel of land known as MITI MINGI/MBARUK BLOCK 5/36. He further stated the plaintiffs failed to appear and the case was dismissed after which the court considered his counterclaim and issued an order of eviction from the subdivision to which the plaintiff had occupied. He stated that upon issuance of the eviction order, the 2nd plaintiff/respondent was given (120) days to vacate from the land but she instead relocated to a different portion of land which he had sold to one Julia Njambi Kinyanjui. He added that the 2nd plaintiff has been sued by Julia for trespass. He further stated that since the plaintiff’s suit was dismissed, she had no right to occupy any portion of the land and that she ought to vacate. He stated that as advised by his advocates, when a judgment debtor obstructs execution of a decree, the court can order vacation from the land and in default, committal to prison for (30) days.
RESPONDENT’S RESPONSE
In response to the application, the Plaintiff/Respondent filed a replying affidavit sworn on 27th November, 2025 where she averred that the Applicant’s counter claim only succeeded in respect to only one portion being Miti Mingi/Mbaruk Block 5/4253.
She further averred that he issues raised by the Applicant did not relate to execution of the orders issued so as to bring them within the operation of Section 34 of the Civil Procedure Act. She averred that at the time of filing the suit, the parcel of land known as Miti Mingi/Mbaruk Block 5/4253 was not in existence as the same had been subdivided in 2013. She further averred that after delivery of the judgment, the Applicant applied for execution which was done and that she moved out of the parcel of land. She added that there was no suit parcel in existence known as Miti Mingi/Mbaruk Block 5/36 thus the application was misplaced. She averred that the Applicant seeks eviction for parcels which are not part of the suit or portions the court never issued an order touching on them.
She urged the court to dismiss the application with costs.
Submissions
None of the parties filed submissions to the application.
ANALYSIS AND DETERMINATION
This court has considered the application and the main issue for determination is whether the application is merited.
It is not in dispute that the Respondents filed this suit against the Applicant and judgment was delivered on 8th February, 2017. It is also not in dispute that the said judgment directed the Respondents to give vacant possession of the suit property to the Applicant within 90 days failure which the Respondent was at liberty to apply for eviction.
Notably, from the court record, there was a court order where counsel for both parties agreed that the Respondents voluntarily vacate the suit parcel within 120 days from 27th October, 2020 failure which eviction to issue upon application. The Applicant claims that the Respondents instead relocated to a different portion of land which the Applicant had sold to one Julia Njambi Kinyanjui. The Respondents on the other hand contends that she already vacated the parcel of land. It was also their contention that the application was misplaceD since there was no suit parcel in existence known as Miti Mingi/Mbaruk Block 5/36 as alleged.
It is not in dispute that MITI MINGI/MBARUK 5/36 was the original suit property prior to subdivision. It is also not in dispute that the Applicant has sought for eviction orders from MITI MINGI/MBARUK 5/36 and/or all the subdivisions. It is therefore this court’s view that the Respondents argument does not hold water since the Applicant has expressly sought for eviction orders from the sub divisions of Block 5/36 which includes Miti Mingi/Mbaruk Block 5/4253.
Consequently, it is this court’s view that the application is merited and I allow the same as prayed. The Respondent is hereby directed to vacate the suit parcel within 30 days failure which the Applicant is at liberty to involve the court bailiff or auctioneers to be assisted by the relevant police department in execution of the eviction. The Respondents shall bear the costs of this application. Orders accordingly.