Simon Ngao Mbithi v Daniel K Ngomo [2020] eKLR Case Summary

Court
Environment and Land Court at Machakos
Category
Civil
Judge(s)
O. A. Angote
Judgment Date
October 23, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Simon Ngao Mbithi v Daniel K Ngomo [2020] eKLR


1. Case Information:
- Name of the Case: Simon Ngao Mbithi v. Daniel K Ngomo
- Case Number: ELC. CASE NO. 313 OF 2009
- Court: Environment and Land Court at Machakos
- Date Delivered: 23rd October 2020
- Category of Law: Civil
- Judge(s): O. A. Angote
- Country: Kenya

2. Questions Presented:
The central legal issues before the court were whether the Plaintiff was entitled to an eviction order against the Defendant from the suit property and whether a demolition order for the structures built by the Defendant on the property should be granted.

3. Facts of the Case:
The Plaintiff, Simon Ngao Mbithi, is the registered owner of land known as Muputi/Kimutwa/1820. He filed an application for eviction and demolition against the Defendant, Daniel K Ngomo, who allegedly constructed a permanent structure on the suit property during the pendency of the case. The Plaintiff claimed that the Defendant had violated a permanent injunction issued by the court in a previous judgment delivered on 25th May 2018, which prohibited the Defendant from trespassing on the Plaintiff's land.

The Defendant countered that the application was frivolous and vexatious, asserting that he owned an adjacent parcel of land, Muputi/Kimutwa/1819, and that the structures in question were not on the Plaintiff's land.

4. Procedural History:
The case progressed through the court system, culminating in the Plaintiff's application dated 3rd October 2019, seeking enforcement of the previous judgment. The court had earlier issued a permanent injunction against the Defendant, which the Plaintiff claimed was being disobeyed. The Defendant had previously filed an application on 15th August 2018, which was dismissed, alleging similar violations by the Plaintiff.

5. Analysis:
- Rules: The court considered Sections 3A, 28, 30, and 38(f) of the Civil Procedure Act and Order 22 Rule 28(5) of the Civil Procedure Rules, which provide for enforcement of court orders and the power to issue eviction and demolition orders.

- Case Law: The court cited previous cases, including *Grace Maundu Kilungya v. Matheka Makuthi & Another* [2019] eKLR and *Josphat Kuria Gathoni v. James Maina Njoroge & 3 Others* [2019] eKLR, which supported the Plaintiff's position that a permanent injunction could be enforced through eviction and demolition.

- Application: The court found that the Defendant had indeed violated the previous injunction by constructing a building on the suit property. The court reasoned that the Plaintiff was entitled to enforce the decree through eviction and demolition, as the Defendant had not complied with the prior orders and had failed to provide evidence that the structures were legally erected.

6. Conclusion:
The court ruled in favor of the Plaintiff, granting an eviction order against the Defendant from the suit property and a demolition order for the structures erected by the Defendant. The court also ordered that the demolition be carried out at the Defendant's costs and that police security be provided during the process.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The court's decision reinforced the authority of prior judgments and the enforcement of injunctions in civil matters. The ruling has broader implications for land ownership disputes in Kenya, emphasizing the importance of compliance with court orders and the consequences of trespassing on another's property. The case highlights the judiciary's role in upholding property rights and ensuring that litigants adhere to court rulings.

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