[2022] KEELC 597 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC MISC APP NO E086 OF 2021

JOHN THUO KIRAGU (suing on behalf of JONATHANKIAMBATI,

DAVID CHEGE &MERCY EMILY WANJIRU as Donors)..........................APPLICANT

=VERSUS=

STEPHEN CHIIRA KARANJA.............................................................1ST RESPONDENT

THUO GATHONI.....................................................................................2ND RESPONDENT

KAROGO GATHONI..............................................................................3RD RESPONDENT

COUNTY GOVERNMENT OF KIAMBU.............................................4TH RESPONDENT

PUBLIC HELTH OFFICER KIAMBU..................................................5TH RESPONDENT

OFFICE OF THE ATTORNEY GENERAL..........................................6TH RESPONDENT

RULING

1. This is the Notice of Motion dated 3rd may 2021 brought under Section 1A and 3A of the Civil Procedure Act Cap 21 Laws of Kenya, Section 26 of Land Registration Act No.3 of 2012, Section 146 of the Public Health Act Cap 242 Laws of Kenya, Order 51 Rule 1 of the Civil procedure Rules, 2010.

2. It seeks orders;

1. Spent.

2. Spent.

3. That this honourable court be pleased to order the 1st, 2nd and 3rd Respondents to within 7 days of this order, remove and/or exhume the remains of TERESIA GATHONI (deceased) unlawfully interred on land parcel number Limuru/Kamirithu/380 belonging to the Applicants.

4. That this honourable court be pleased to order that should the 1st, 2nd and 3rd Respondents fail to remove and/exhume the remains of TERESIA GATHONI (deceased) from land parcel number Limuru/Kamirithu/380 within 7 days of service of this order, the Plaintiffs be at liberty to remove and/or exhume the said remains and take then to the nearest mortuary.

5. That this honourable court be pleased to order the 4th and 5th Respondents to issue an exhumation permit for exhumation of the remains of TERESIA GATHONI (deceased) from land parcel number Limuru/Kamirithu/380.

6. That this honorable court be pleased to order that at the time of exhumation, the OCS Tigoni police station, the area chief and/or assistant chief and the public health officer Kiambu County do provide security and supervise the exhumation exercise.

7. That the cost of this application be awarded to the applicants.

8. That this honourable court be pleased to grant any other orders as it may deem fit.

3. The grounds are on the face of the application and are set out in paragraphs 1 to 9.

4. The application is supported by the affidavit of John Thuo Kiragu, the Applicant sworn on the 3rd May 2021 and a supplementary affidavit sworn on the 14th October 2021.

5. The application is opposed. There is a replying affidavit sworn by Stephen Chiira Karanja, the 1st Respondent herein on the 21st September 2021.

6. On the 29th July 2021, the court with the consent of the parties directed that the notice of motion be canvassed by way of written submissions.

7. On the 28th October 2021, Mr. Maina for the 1st – 3rd Respondents sought and was granted seven (7) days to file the submissions. By the time of writing this ruling, he had not filed any.

8. The Applicant’s submissions are dated 11th October 2021. It is his submissions that there were orders barring the 1st – 3rd Respondents form trespassing on the suit property which orders were disobeyed by the Respondents. Further that any acts done contrary to the said orders are illegal and a nullity.

9. I have considered the notice of motion and the affidavit in support. I have considered the response thereto and the Applicant’s submissions. The question before court is whether this application is merited.

10. Judgment in ELC 588 of 2014 was in favour of the Applicant.

11. The 1st Respondent in his replying affidavit raises issues that were raised in ELC 588 of 2014. He did not raise any new issues.

12. In view of the judgment in ELC 588 of 2014, I find merit in this application and the same is allowed in the following terms:-

(a) That the 1st, 2nd and 3rd Respondents are hereby ordered to remove and/or exhume the remains of Teresia Gathoni (Deceased) unlawfully interred on land Parcel Number Limuru/Kamirithu/380 belonging to the Applicants within thirty (30) days from the date of this Judgment.

(b) That in default of order number (a) the Plaintiff/Applicant shall be at liberty to remove and/or exhume the said remains and take them to the nearest mortuary.

(c) That the 4th and 5th Respondents are hereby directed to issue an exhumation permit for exhumation of the remains of Teresia Gathoni (Deceased) from Land Parcel Number Limuru/Kamirithu/380.

(d) That the OCS Tigoni Police Station, the area Chief and/or assistant Chief and the Public Health Officer Kiambu County do provide security and supervise the exhumation exercise.

(e) That each party do bear own costs.

It is so ordered.

DATED, SIGNED AND DELIVERED NAIROBITHIS 24TH DAY OF MARCH 2022.

..........................

L. KOMINGOI

JUDGE

In the presence of:-

Mr. Njoroge for the Applicant

Mr. Maina for Mr. Karoki for the Respondents

Steve - Court Assistant