[2019] KEELC 2621 (KLR)
The court found that there was indeed an error on the face of the record regarding the existence of a replying affidavit, and accordingly reviewed its earlier finding to acknowledge the affidavit. However, after considering the substance of the replying affidavit, the court held that the construction of a pit...
Source-derived case information.
- Citation
- [2019] KEELC 2621 (KLR)
- Parties
- Applicant: Naomi Chepkering Bitok; Respondent: Enock Kipkirong Bitok; Respondent: Amos Kibet Bitok; Respondent: Sammy Kipkorir Bitok
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 46 of 2018
- Procedural Posture
- Originating Summons / Ruling on Applications for Review and Contempt
- Outcome
- Partial review granted; contempt application dismissed.
- Judges
- A Ombwayo
- Legal Topics
- Review of Court Orders, Contempt of Court, Temporary Structures, Land Utilization
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Naomi Chepkering Bitok
Applicant
Enock Kipkirong Bitok
Respondent
Amos Kibet Bitok
Respondent
Sammy Kipkorir Bitok
Respondent
Procedural Posture
Originating Summons / Ruling on Applications for Review and Contempt
Legal Issues
- 1 Whether there was an error on the face of the record regarding the existence of a replying affidavit.
- 2 Whether the orders on utilization of land and construction of temporary structures should be reviewed.
- 3 Whether the applicant has established contempt of court by the plaintiff/respondent.
Ratio Decidendi
The court found that there was indeed an error on the face of the record regarding the existence of a replying affidavit, and accordingly reviewed its earlier finding to acknowledge the affidavit. However, after considering the substance of the replying affidavit, the court held that the construction of a pit latrine does not constitute a health hazard and falls within permissible land utilization. The court declined to review its previous orders on land utilization and the construction of a bathroom and pit latrine, but found grounds to review the order regarding the use of a temporary structure as a home and store, limiting its use to servant quarters with a maximum of three rooms. On...
Court Disposition
Partial review granted; contempt application dismissed.
Orders
- The court reviews its finding to acknowledge the existence of the replying affidavit.
- The order on utilization of land remains unchanged; parties to utilize the land equally.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT ELDORET
E & L CASE NO. 46 OF 2018 (OS)
NAOMI CHEPKERING BITOK.................................................................APPLICANT
VERSUS
ENOCK KIPKIRONG BITOK........................................................1ST RESPONDENT
AMOS KIBET BITOK......................................................................2ND RESPONDENT
SAMMY KIPKORIR BITOK...........................................................3RD RESPONDENT
RULING
There are two applications on record in this matter. The first application is dated 25th April, 2019 wherein the plaintiff/applicant prays that the court does review or set aside the orders delivered on the 8th April, 2019 pending the hearing and determination of the main suit. That the costs of the application be borne by the respondent.
The application is supported by the affidavit of Naomi Chepkering Bitok and grounds therein whose gist is that there is an error or mistake as there is a replying affidavit on record and yet the court found that there was no replying affidavit.
I have seen the annexed replying affidavit and do agree that there is an error on the face of record and therefore, I do review my finding that the plaintiff/respondent did not file a replying affidavit. I have considered the replying affidavit and do find that construction of a pit latrine cannot be said to be a health hazard. I have already ordered that the parties to utilize the land half equally and therefore, I will not review that decision.
Utilization of land includes putting up temporary structures and toilet. I do not find grounds to review the order on utilization. Moreover, I do not find grounds to review the order allowing the defendants to construct a bathroom and pit latrine however, I do find grounds for review of the order for temporary structure as a home and store on their share of the land as per the court order dated 6th March, 2018. I do order that the temporary structure be used as a servant quarters and be limited to 3 rooms.
In respect of the application dated 28th May, 2019, I do find that the applicant has not satisfied the court that the plaintiff/respondent is in contempt of the orders of the court. I do decline to grant the orders sought. There will be no order as to costs.
Dated and delivered at Eldoret this 28th day of June, 2019.
A. OMBWAYO
JUDGE