1. The dispute between JAMES O. E. ANYANGO (the Plaintiff) and WENSLAUSE OCHOMO OKEMER (the Defendant) over the ownership of the land parcel NO SOUTH TESO/APOKOR/3537 (the suit land) was heard and determined by OMOLLO J. Vide a Judgment delivered on 22nd July 2021, the Judge made the following disposal orders:
a) The Defendant is ordered to surrender vacant possession of the suit parcel NO SOUTH TESO/APOKOR/3537 within ninety (90) days of delivery of this judgment.
b) In default of (a) above, eviction to issue.
c) On recovery of vacant possession, an order or permanent injunction be and is hereby issued against the Defendant by himself, his servants, family, agents or otherwise from entering, remaining on, cultivating, planting any crops, removing boundary features in any manner or whatsoever interfering with the Plaintiff’s use and occupation of the land parcel NO SOUTH TESO/APOKOR/3537.
d) The Plaintiff is awarded the costs of this suit.
2. The Defendant did not vacate the suit land as directed and an eviction order was issued to the firm of DASEMY AUCTIONEERS (the Applicant herein) on 17th January 2024.
3. The Applicant has now approached this Court vide his Notice of Motion dated 31st January 2024 in which he seeks the main order that the Officer Commanding Amukura Police Station do provide him with security while executing the eviction order.
4. The application is premised on Sections 1A, 1B, 3A of the Civil Procedure Rules and Rule 9 of the Auctioneers Rules. It is based on the grounds set out therein and is supported by the affidavit of SAMSON OKALL who is a licenced Auctioneer practicing under the name and style DASEMY AUCTIONEERS.
5. The gravamen of the application is that the Defendant did not appeal the judgment delivered on 22nd July 2021 and that whereas the Applicant has been issued with an eviction order directing him to evict the Defendant from the suit land, such eviction cannot be possible without Police assistance to avoid a breach of the peace. That when the Applicant tried to seek the assistance of the Officer Commanding Amukura Police Station, the Officer directed him to get an order from this Court.
6. Annexed to the application is the eviction order issued by this Court on 17th January 2024.
7. When the application came up on 18th September 2024, MR MABACHI holding brief for MR OKEYO for the Defendant informed the Court that MR OKEYO had only been instructed that morning and needed time to put in a response. The Court gave him upto 25th September 2024 to file and serve the Defendant’s response to the application as well as submissions which had already been filed and served upon the Defendant.
8. Come 25th September 2024, the Defendant had not filed any response to the application. He had however filed his submissions in person. The application is therefore not opposed.
9. I have considered the application un-opposed as it is, as well as the submissions by both the Applicant and the Defendant.
10. It is common ground that the Court vide its Judgment dated 22nd July 2021 directed the Defendant to vacate the suit land within 90 days or be evicted therefrom. That judgment has not been appealed and more than 3 years later, the Defendant is still on the suit land. While the application is not opposed, the Defendant in submissions states that he is an old man who has lived on the suit land all his life. He also suggests that his advocates have let him down. In paragraph 3 of his submissions, he says:
“That I had 2 advocates on record but they have lost touch with me in the cause of their legal practice and whatever has been transpiring on my case is totally unknown.”
I can see from the record that the firm of OKEYO OCHIEL & COMPANY ADVOCATES were previously on record for the Defendant. However, by a Chamber Summons application dated 24th February 2020, they applied to cease acting for him. One of the grounds cited for that application in paragraph 1 thereof which reads:
1: “That the Defendant has stopped giving further instructions thereby making it impossible for counsel to continue with conduct of this matter.”
The application was allowed by OMOLLO J on 12th March 2020 and MR OMERI of KORONGO & COMPANY ADVOCATES came on record for the Defendant on 25th September 2020 and even conducted the Defendant’s defence. It would appear that MR OKEYO was later instructed to come on record for the Defendant but notwithstanding the fact that on 18th September 2024 this Court allowed counsel to file his documents, he did not do so. The record further shows that by a Notice of Motion dated 3rd November 2021, the Defendant sought, inter alia an order to act in person and he has continued to do so since then.
11. Eviction from land is an emotional process. The Defendant is trying to revisit the Judgment herein by his submissions. Since he did not appeal the Judgment, this Court cannot now purport to re-visit the dispute over the suit land. Having defaulted in vacating the suit land, the Defendant must be evicted therefrom. He has had sufficient time to appeal or relocate. The Plaintiff is entitled to take vacant possession of the suit land as per the Judgment herein. The Applicant states that evicting the Defendant will need Police assistance. I have no reason to doubt that.
12. Ultimately therefore and having considered the Notice of Motion dated 31st January 2024, I issue the following orders:
1) The Officer Commanding Amukura Police Station is hereby directed to provide security to DASEMY AUCTIONEERS while executing the eviction orders herein.
2) The eviction be carried out in a dignified manner without destruction of any property belonging to the Defendant.
3) No orders as to costs.
BOAZ N. OLAO
JUDGE
30TH SEPTEMBER 2024
Ruling dated, signed and delivered in Open Court on this 30th day of September 2024.
BOAZ N. OLAO
JUDGE
30TH SEPTEMBER 2024
Plaintiff Present in Person
Applicant Absent
BOAZ N. OLAO
JUDGE
30TH SEPTEMBER 2024
a) The Defendant is ordered to surrender vacant possession of the suit parcel NO SOUTH TESO/APOKOR/3537 within ninety (90) days of delivery of this judgment.
b) In default of (a) above, eviction to issue.
c) On recovery of vacant possession, an order or permanent injunction be and is hereby issued against the Defendant by himself, his servants, family, agents or otherwise from entering, remaining on, cultivating, planting any crops, removing boundary features in any manner or whatsoever interfering with the Plaintiff’s use and occupation of the land parcel NO SOUTH TESO/APOKOR/3537.
d) The Plaintiff is awarded the costs of this suit.
2. The Defendant did not vacate the suit land as directed and an eviction order was issued to the firm of DASEMY AUCTIONEERS (the Applicant herein) on 17th January 2024.
3. The Applicant has now approached this Court vide his Notice of Motion dated 31st January 2024 in which he seeks the main order that the Officer Commanding Amukura Police Station do provide him with security while executing the eviction order.
4. The application is premised on Sections 1A, 1B, 3A of the Civil Procedure Rules and Rule 9 of the Auctioneers Rules. It is based on the grounds set out therein and is supported by the affidavit of SAMSON OKALL who is a licenced Auctioneer practicing under the name and style DASEMY AUCTIONEERS.
5. The gravamen of the application is that the Defendant did not appeal the judgment delivered on 22nd July 2021 and that whereas the Applicant has been issued with an eviction order directing him to evict the Defendant from the suit land, such eviction cannot be possible without Police assistance to avoid a breach of the peace. That when the Applicant tried to seek the assistance of the Officer Commanding Amukura Police Station, the Officer directed him to get an order from this Court.
6. Annexed to the application is the eviction order issued by this Court on 17th January 2024.
7. When the application came up on 18th September 2024, MR MABACHI holding brief for MR OKEYO for the Defendant informed the Court that MR OKEYO had only been instructed that morning and needed time to put in a response. The Court gave him upto 25th September 2024 to file and serve the Defendant’s response to the application as well as submissions which had already been filed and served upon the Defendant.
8. Come 25th September 2024, the Defendant had not filed any response to the application. He had however filed his submissions in person. The application is therefore not opposed.
9. I have considered the application un-opposed as it is, as well as the submissions by both the Applicant and the Defendant.
10. It is common ground that the Court vide its Judgment dated 22nd July 2021 directed the Defendant to vacate the suit land within 90 days or be evicted therefrom. That judgment has not been appealed and more than 3 years later, the Defendant is still on the suit land. While the application is not opposed, the Defendant in submissions states that he is an old man who has lived on the suit land all his life. He also suggests that his advocates have let him down. In paragraph 3 of his submissions, he says:
“That I had 2 advocates on record but they have lost touch with me in the cause of their legal practice and whatever has been transpiring on my case is totally unknown.”
I can see from the record that the firm of OKEYO OCHIEL & COMPANY ADVOCATES were previously on record for the Defendant. However, by a Chamber Summons application dated 24th February 2020, they applied to cease acting for him. One of the grounds cited for that application in paragraph 1 thereof which reads:
1: “That the Defendant has stopped giving further instructions thereby making it impossible for counsel to continue with conduct of this matter.”
The application was allowed by OMOLLO J on 12th March 2020 and MR OMERI of KORONGO & COMPANY ADVOCATES came on record for the Defendant on 25th September 2020 and even conducted the Defendant’s defence. It would appear that MR OKEYO was later instructed to come on record for the Defendant but notwithstanding the fact that on 18th September 2024 this Court allowed counsel to file his documents, he did not do so. The record further shows that by a Notice of Motion dated 3rd November 2021, the Defendant sought, inter alia an order to act in person and he has continued to do so since then.
11. Eviction from land is an emotional process. The Defendant is trying to revisit the Judgment herein by his submissions. Since he did not appeal the Judgment, this Court cannot now purport to re-visit the dispute over the suit land. Having defaulted in vacating the suit land, the Defendant must be evicted therefrom. He has had sufficient time to appeal or relocate. The Plaintiff is entitled to take vacant possession of the suit land as per the Judgment herein. The Applicant states that evicting the Defendant will need Police assistance. I have no reason to doubt that.
12. Ultimately therefore and having considered the Notice of Motion dated 31st January 2024, I issue the following orders:
1) The Officer Commanding Amukura Police Station is hereby directed to provide security to DASEMY AUCTIONEERS while executing the eviction orders herein.
2) The eviction be carried out in a dignified manner without destruction of any property belonging to the Defendant.
3) No orders as to costs.
BOAZ N. OLAO
JUDGE
30TH SEPTEMBER 2024
Ruling dated, signed and delivered in Open Court on this 30th day of September 2024.
BOAZ N. OLAO
JUDGE
30TH SEPTEMBER 2024
Plaintiff Present in Person
Applicant Absent
BOAZ N. OLAO
JUDGE
30TH SEPTEMBER 2024