Augustin Kipkoech Cheruiyot & Paul Kipkemoi Arap Tue v Haron Ochanda Kaburi [2018] KEELC 1059 (KLR)

REPUBLIC  OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC NO.464 OF  2017

AUGUSTIN KIPKOECH CHERUIYOT....1ST APPLICANT

PAUL KIPKEMOI ARAP TUE ................2ND   APPLICANT

VERSUS

HARON OCHANDA KABURI ......................RESPONDENT

RULING

(Application for eviction; respondent having made a claim for adverse possession over the suit land which was dismissed; respondent’s continued possession of the suit land therefore not tenable; orders of eviction issued).

1. The application before me is that dated 14 May 2018 filed by the defendant vide which he has sought orders of eviction to be issued against the 1st plaintiff over 10 acres that he is claimed to occupy in the land parcel Nakuru/Kapsita/1068. The applicant has also sought that the order of eviction be enforced by the OCS, Elburgon Police Station.

2. The case itself was commenced by way of an Originating Summons through which the plaintiffs claimed to be entitled to the land parcel Nakuru/Kapsita/1068 by way of adverse possession. The 1st plaintiff (the respondent in this application) claimed to be entitled to 10 acres of this land, whereas the 2nd plaintiff claimed to be entitled to 5 acres of the land. Their suit was heard and dismissed on 10 December 2014.

3. In this motion, the applicant has averred that despite the judgment, the respondent has refused to vacate the suit land thus making this application necessary.

4. The respondent did not file anything to oppose the motion. On my part, I see no reason why I should not allow it. The respondent’s case over the suit property failed and the respondent has no right to be on the suit land. It has already been held in a full judgment that the respondent has no claim over the suit land. The prayer by the applicant for an order of eviction is therefore justified.

5. I allow this application and issue eviction orders against the 1st plaintiff, Augustine Kipkoech Cheruiyot. I direct the applicant to appoint a court broker/auctioneer to execute the warrants of eviction. I further order the OCS, Elburgon, to provide security to the court broker/auctioneer, during the eviction exercise. The respondent will bear the costs of this application and any costs of eviction.

6. It is so ordered.

Dated, signed and delivered in open court at Nakuru this 3rd  day of October 2018.

JUSTICE MUNYAO SILA

ENVIRONMENT & LAND COURT AT NAKURU

In presence of: -

Mr.  Ogeto for the applicant.

No Appearance for the respondent.

Court Assistant: Nelima Janepher.

JUSTICE MUNYAO SILA

ENVIRONMENT & LAND COURT AT NAKURU