Introduction
1. Before court is a Notice of Motion dated 9th July, 2024 filed by the plaintiff seeking the following orders;
a) The OCS Butere police station be ordered to effect the eviction of the defendant/respondent and or his agents, servants or relatives from the land parcel No. Marama/Shinamwenyuli/1854 pursuant to the judgement delivered by this Honourable court on 22nd November, 2018 from which a decree dated 28th November, 2018 was issued.
b) That costs of this application be provided for.
2. The application is supported by the affidavit sworn by John Omukubi Wanyungu, the plaintiff herein on 9th July, 2024. The applicant’s case is that the defendant has refused to comply with this court’s judgment delivered on 22nd November, 2018 and is still in illegal and forceful occupation of the parcel of land known as Maranda/Shinamwenyuli/1854 (suit property). He argued that it is therefore necessary for the OCS of Butere police station to be ordered to execute the decree of the court because the court does not issue orders in vain.
3. The application is opposed. Kweyu Khaisio the defendant, filed a replying affidavit dated 15th October, 2024. He deponed that the application is frivolous and abuse of the court process as the intended eviction is premature because the plaintiff has failed to follow the due process for effecting an eviction. He also stated that he has never been served with the decree or eviction notice as required by law and that if the orders sought are allowed, he will be prejudiced.
4. The application was disposed by way of written submissions and on record are the plaintiff’s submissions dated 20th February, 2025 which this court has duly considered.
Analysis and Determination
5. The court has duly considered the application, response and submissions by the applicant. The only issue that arise for the court’s determination is whether the orders sought should be granted.
6. Order 22 Rule 29 of the Civil Procedure Rules provides for execution of decree in regard to immovable property as follows;
"Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such other person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property."
7. Therefore where a decree has been issued requiring delivery of immovable property, a party in possession shall deliver possession to the party in whose favour the decree is issued but if the defendant refuses to vacate they shall be removed and or evicted from such property.
8. In this case, the court having perused the decree, it is clear that in its judgment, this court issued orders of eviction against the defendant from the suit property on 28th November, 2018. The applicant has deponed that to date, the defendant has refused to give him vacant possession of the suit property and continues in the defiance of the decree. This assertion has not been denied by the defendant who argues that the procedure for eviction has not been followed and that an order of eviction would be premature. I do not agree with the defendant’s position. This court already ordered for his eviction from the suit property in 2018 and it is over four years now is yet he has not complied with the said order. Therefore, his allegation that the prayer for eviction is premature has no basis or justification. As the court ordered for his eviction, and the decree not having been set aside or reviewed, he ought to be evicted.
9. Court decrees are executed by court bailiffs and auctioneers. In this case, the applicant sought that the O.C.S Butere Police station to effect eviction of the defendant. The applicant has not shown this court any provision that empowers an O.C.S to effect an eviction. While eviction in a case where the defendant refuses to vacate, may require removing him from the suit property by force, which may result in security concerns, the role of the police is to provide security and maintain law and order, but not to effect eviction.
10. In the premises, as the plaintiff is entitled to enjoy the fruits of the judgment in the realization of his right to access to justice enshrined in Article 48 of the Constitution, I am of the opinion that the defendant ought to be evicted forthwith from the suit property. Therefore, I make the following orders;
a) Eviction orders are hereby issued against the defendant herein, his agents, servants and or relatives from land parcel No. Marama/Shinamwenyuli/1854.
b) The court bailiff is directed to execute the eviction orders herein.
c) The O.C.S Butere police station is directed to provide security during the eviction process.
d) The costs of this application shall be borne by the defendant.
10. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA VIRTUALLY THIS 13TH DAY OF MARCH, 2025 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM
In the presence of;
Mr. Shiloya for the applicant
No appearance for the respondent
Court Assistant: M. Nguyai