Joseph Ndava Nthuka & Ruth Kamene Nduva v Raphael Musila Mutiso, Mathew Mutiso, Kaloki Musila & Nzioka Musila [2021] KEELC 3034 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 220 OF 2010

JOSEPH NDAVA NTHUKA.........................................................1ST PLAINTIFF

RUTH KAMENE NDUVA...........................................................2ND PLAINTIFF

VERSUS

RAPHAEL MUSILA MUTISO.................................................1ST DEFENDANT

MATHEW MUTISO..................................................................2ND DEFENDANT

KALOKI MUSILA.....................................................................3RD DEFENDANT

NZIOKA MUSILA.....................................................................4TH DEFENDANT

RULING

1. In the Application dated 5th December, 2019, the Plaintiffs prayed for the following orders:

a) That the Officer Commanding Station (O.C.S) Joska Police Station do enforce the Decree issued by this court on 12th November, 2019 by forcefully evicting the Defendants from parcel of land known as Mavoko Town Block 3/2729.

b) That the Defendants to pay the Plaintiffs the costs of the Application.

2. The Application is supported by the Affidavit of the 1st Plaintiff who has deponed that this court delivered its Judgment in this matter on 22nd September, 2017; that in the Judgment, the court allowed for the eviction of the Defendants from the suit property and that in order to effectively enforce the Judgment, the OCS should be incorporated.

3. In reply, the 1st Defendant, on behalf of himself and the other Defendants, deponed that when Judgment was delivered in this suit, no notice was issued to them; that they applied for extension of time to lodge an Appeal to the Court of Appeal and that upon refusal by the single Judge to grant them leave to file an Appeal out of time, they requested to have the same heard before a full bench.

4.  It is the Defendants’ deposition that they have resided on the suit land since 2004 and are related by blood with the Plaintiffs; that if the order of eviction were to be enforced and their Appeal, whose process they have already began, is successful, they will be unable to redeem the land thus rendering them destitute and that the hearing of the Application dated 5th December, 2019 should await the hearing and determination of their Application dated 29th January, 2019. The parties filed brief submissions which I have considered.

5. In its Judgment dated 22nd September, 2017, this court ordered for the eviction of the Defendants from the parcel of land known as Mavoko Town Block 3/2729(the suit property).There is no stay of execution of the said Judgment either by this court or the Court of Appeal. That being the case, the Defendants should vacate the suit property as ordered by the court.

6. For those reasons, I allow the Plaintiffs’ Application dated 5th December, 2019 as follows:

a) The Officer Commanding Station (O.C.S) Joska Police Station do enforce the Decree issued by this court on 12th November, 2019 by forcefully evicting the Defendants from parcel of land known as Mavoko Town Block 3/2729.

b) The Defendants to pay the Plaintiffs the costs of the Application.

DATED, SIGNED AND DELIVERED VIRTUALLY IN MACHAKOS THIS 4TH DAY OF JUNE, 2021.

O. A. ANGOTE

JUDGE