1. By a notice of motion dated 4th April 2024, brought under section 1A, 1B, 3, 3A and 63E of the Civil Procedure Act; Order 51 of the Civil Procedure Rules; and Section 3A and 134 of the Environment and Land Court Act, the plaintiff/applicant seeks the following orders:-
1. That the court reverts back to its judgment delivered on 22nd September, 2023 and the execution process to commence;
2. That the OCS Eldama Ravine Police Station to accord security to Eshikooni Auctioneers during execution;
3. That costs of the application be in cause.
2. The application is premised on the grounds that this court delivered a judgment on 22nd September, 2023 through which it held that the plaintiff is the registered proprietor of the suit property; that continued use of the suit property by the defendants when they don’t have a better title to the suit property is inimical to the plaintiff’s rights and that the defendants/respondents should be evicted from the suit property and upon eviction be permanently restrained from trespassing into the suit property.
3. The application is supported by the affidavit of the plaintiff/applicant sworn on 4th April 2024, in which the grounds on the face of the application are reiterated. Besides reiterating the grounds on the face of the application, the plaintiff/applicant has attached a copy of the decree purportedly issued pursuant to the court’s judgment referred to herein above and marked it MK-1 (the document attached to the affidavit is a draft decree as it has no date of issuance or stamp of the court).
4. Despite having been accorded opportunity to file a response to the application, the defendants/respondents did not file a response to the application within the time given by the court and at all.
5. On 3rd July 2024, when the application came up for hearing, counsel for the plaintiff/applicant urged the court to allow the application as prayed since it is unopposed.
Analysis and determination
6. I have carefully considered the application and the law applicable, particularly the provisions of Order 22 of the Civil Procedure Rules.
7. Whereas through the application the plaintiff/applicant seeks to execute the decree issued in his favour pursuant to the judgment of this court delivered on 22nd September 2023, I note that the plaintiff/applicant has not moved the court through the right sections of the law particularly Order 22 Rules 6 and 7 of the Civil Procedure Rules.
8. Order 22 Rule 6 of the Civil Procedure Rules provides as follows:-
“Where the holder of a decree desires to execute it, he shall apply to the court which passed the decree, or, if the decree has been sent under the provisions hereinbefore contained to another court, then such court or to the proper officer thereof; and applications under this rule shall be in accordance with Form No.14 of Appendix A”.
9. Order 22 Rule 7, on the other hand, provides as follows:-
“1. Where the decree is for payment of money.....
2. save as otherwise provided by subrule (1) or by any other enactment or rule, every application for execution of a decree shall be in writing, signed by the applicant or his advocate or by some other person proved to the satisfaction of the court to be acquinted with the facts of the case, and shall contain in a tabular form the following particulars-
a. the number of the suit;
b. the names of the parties;
c. the date of the decree;
d. whether any appeal has been preferred from the decree;
e....
f.....
g. ....
h......
i. the name of the person against whom execution of the decree is sought; and
j. the mode in which the assistance of the court is required....”
10. Under subrule 3 of rule 7, the court to which an application is made under subrule (2), may require the applicant to produce a certified copy of the decree.
11. It is clear from the above cited provisions of the law that the law provides for the mode or manner of execution of court decrees.
12. There is no requirement of the court to revert to its judgment before execution of the decree can ensue. All what is required from the applicant, is an application under Order 22 rules 6 and 7 of the Civil Procedure Rules. It is in such an application where the applicant would indicate what assistance if any, is required in execution of a decree.
13. One of the required particulars in an application for execution of a decree is the date of the decree. The court may also require a certified copy of the decree.
14. As pointed out hereinabove, the decree attached to the applicant’s application is neither dated nor signed. That being the case, it cannot satisfy the requirement of the law relating to provision of particulars touching on the date of the decree. The application is also defective for want of form.
15. I have reminded myself that under Order 51 Rule 10 sub rule 2 no application shall be defeated on a technicality or for want of form that does not affect the substance of the application. That notwithstanding, in the circumstances of this application, where the application is both defective for want of form and failure to comply with the mandatory requirement of the law like giving the date of the decree sought to be executed, I find the application to be incurably defective and strike out with no order as to costs as it is undefended.
16. The applicant is directly to move the court appropriately.
17. Orders accordingly.
Dated, signed and delivered virtually this 16th day of September, 2024.
In the presence of:
- Mr. Mathai Advocate for the plaintiff/Applicant.
- N/A for the Respondent.