1.The plaintiff's clsim in this case was for the determination of the following prayers:-i.A declaration that the inclusion of a portion measuring 2.25 acres, in LR No Gesima Settlement Scheme/299, in favour of the defendant, was fraudulent, illegal, null & void.ii.An order of cancellation and/or rectification of the register in respect of LR No Gesima Settlement Scheme/299, with a view to excising the portion measuring 2.25 acres and reverting same to the Estate of the Deceased.iii.A permanent injunction restraining the defendant either by himself, agents and/or servants from entering upon, cultivating, occupying, encumbering, dealing and/or interfering with the plaintiff’s and the estate of the deceased’s possession, occupation and use of the portion measuring 2.25 acres now forming and/or comprising of LR No Gesima Settlement Scheme/299, whatsoever and/or howsoever.iv.Costs of this suit be borne by the defendant.v.Such further and/or other relief as the honourable court may deem fit and expedient so to grant.
2.Judgment was delivered on March 23, 2022 dismissing the plaintiff’s claim over a portion of the parcel of land known as LR Gesima Settlement Scheme/299 measuring 2.25 acres.
3.Subsequently, on June 20, 2022 the defendant/decree holder applied to this court by way of a notice of motion for the following: -1.The honourable court be pleased to order and/or direct that the plaintiff/respondent herein do grant vacant possession in respect of land parcel No LR No Gesima Settlement Scheme/299 registered in the name of and belonging to the defendant/applicant.2.In the alternative and without prejudice to prayer (1) hereof, the honourable court be pleased to order and/or direct that the plaintiff/respondent be forcefully evicted from land parcel No LR No Gesima Settlement Scheme/299 forthwith.3.That the OCS, Manga Police Station do ensure compliance with the orders.4.Costs of the eviction and the instant application be borne by the plaintiff/respondent herein.5.Such further and/or other orders be made as the court may deem fit and expedient.
4.In the meantime, the decree holder samuel gisiora ogoti died on July 11, 2022 before realizing the fruits of his otherwise successful litigation but having made the application to have vacant possession of his portion of land that was being claimed by the judgment debtor. He was substituted by one Jane Kerubo Gisiora, his wife on October 19, 2022. The judgment debtor countered the above application for vacant possession and/or eviction vide a statement of grounds of opposition dated July 5, 2022 claiming that this court is functus officio and the Application is therefore an abuse of the process of the court.
5.I have looked at the rival sentiments.
6.Subsequent to every judgment, there follows the process of execution. The whole of part III of the Civil Procedure Act is devoted to execution of decrees.Section 30 provides that:Section 34 (1) provides: -
7.Under order 22 of the Civil Procedure Rules, rule 29 provides how such a decree in respect to immovable property should be executed.
8.We also wish to bring to the attention of the judgment debtor the following safeguards afforded to the decree holder while executing the decree:
9.From the above, it is not in doubt that execution of a decree issued by a court is in the arena of the court that gave judgment unless the court orders otherwise by way of say transfer.
10.Since the judgment debtor only raised the issue of jurisdiction but did not oppose the application dated June 20, 2022 and which jurisdiction the court has ruled that it has, the application dated June 20, 2022 is hereby granted with costs.