[2020] KEELC 307 (KLR)
The court found that the 2nd and 3rd defendants had failed to comply with the judgment and decree delivered on 24th June 2020, which required them to vacate the suit land and exhume the bodies of the deceased within 90 days. The period for compliance expired on 24th September 2020, and the defendants neither vacated...
Source-derived case information.
- Citation
- [2020] KEELC 307 (KLR)
- Parties
- Applicant: Patrick Malongo Lidovolo; Defendant: Luice Asang’asa (Deceased); Respondent: Acton Musii Khalambukha; Respondent: Sabeti Khalambukha
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 78 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Enforcement Application
- Outcome
- application granted
- Judges
- NA Matheka
- Legal Topics
- Eviction Orders, Enforcement of Judgments, Exhumation of Bodies, Contempt of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Malongo Lidovolo
Applicant
Luice Asang’asa (Deceased)
Defendant
Acton Musii Khalambukha
Respondent
Sabeti Khalambukha
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Enforcement Application
Legal Issues
- 1 Whether the 2nd and 3rd defendants should be evicted from land parcel No. Tiriki/Shamakhokho/1442 for non-compliance with a court decree.
- 2 Whether the 2nd and 3rd defendants should be compelled to exhume the bodies of the deceased from the suit land and bury them elsewhere.
- 3 Whether the O.C.S. Serem police station should be ordered to enforce the court's orders.
Ratio Decidendi
The court found that the 2nd and 3rd defendants had failed to comply with the judgment and decree delivered on 24th June 2020, which required them to vacate the suit land and exhume the bodies of the deceased within 90 days. The period for compliance expired on 24th September 2020, and the defendants neither vacated the land nor exhumed the bodies. There was no stay of execution in place. The court emphasized that court orders must be obeyed and that the applicant was entitled to the fruits of his judgment. Consequently, the court granted the application for eviction, exhumation, and enforcement by the police, with costs to be borne by the 2nd and 3rd defendants.
Court Disposition
application granted
Orders
- Eviction order issued for the forceful ejection of the 2nd and 3rd defendants, their relatives, servants, agents, and anyone claiming through them from land parcel No. Tiriki/Shamakhokho/1442 forthwith.
- The 2nd and 3rd defendants are ordered to forthwith exhume the bodies of the 1st defendant Luke Asang’asa and Flora Ayega from the suit land and bury them elsewhere; in default, exhumation and preservation at the morgue or burial to be carried out at their cost.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAKAMEGA
ELC CASE NO. 78 OF 2017
PATRICK MALONGO LIDOVOLO.......................................................PLAINTIFF/APPLICANT
VERSUS
LUICE ASANG’ASA(DECEASED)
ACTON MUSII KHALAMBUKHA
SABETI KHALAMBUKHA............................................................DEFENDANT/RESPONDENTS
RULING
The application is dated 12th November 2020 and is brought under Order 22 Rule 29 of the Civil Procedure Rules 2010 seeking the following orders that;
1. This honourable court be pleased to issue an eviction order for the forceful ejection of the 2nd and 3rd defendants, their relatives, servants, agents and or anybody claiming through them from the suit land parcel No. Tiriki/Shamakhokho/1442 forthwith and all or any structures erected thereon by the 2nd and 3rd defendants be demolished.
2. That the 2nd and 3rd defendants be and are hereby ordered to forthwith exhume the bodies of the 1st defendant Luke Asang’asa and Flora Ayega both deceased from the suit land parcel No. Tiriki/Shamakhokho/1442 and for them to bury the bodies elsewhere and in default the exhumation and preservation at the morgue or burial be carried out at their cost.
3. The O.C.S. – Serem police station be ordered to effect and enforce these orders.
4. Costs of this application be borne by the 2nd and 3rd defendants/respondents.
It is based on the affidavit of Patrick Malongo Lidovolo, the plaintiff/applicant and grounds that by the judgment/decree of this honourable court delivered on 24th June, 2020 the 2nd and 3rd defendants were granted 90 days to vacate the suit land parcel No. Tiriki/Shamakhokho/1442 or be evicted therefrom. The 2nd and 3rd defendants were also ordered to exhume the bodies of the 1st defendant and Flora Ayega both deceased from the suit land and bury them elsewhere and they were also restrained from trespassing or remaining on or using the suit land parcel No. Tiriki/Shamakhokho/1442. The 90 days given to the 2nd and 3rd defendants expired on 24th September, 2020 but they have in blatant disobedience of the decree and orders of the court refused to vacate but instead they have continued to arrogantly trespass on, occupy and use the suit land parcel No. Tiriki/Shamakhokho/1442 and neither have they also not exhumed the bodies of the two deceased aforementioned which is an eye-sore and degrading the suit land. It is imperative and necessary that the orders sought herein be granted in order to bring this litigation to an end and to enable the plaintiff/decree-holder enjoy the fruits of his success in litigation.
This court has considered the application and the submissions therein. It is a finding of fact that by the judgment/decree of this honourable court delivered on 24th June, 2020 the 2nd and 3rd defendants were granted 90 days to vacate the suit land parcel No. Tiriki/Shamakhokho/1442 or be evicted therefrom. The 2nd and 3rd defendants were also ordered to exhume the bodies of the 1st defendant and Flora Ayega both deceased from the suit land and bury them elsewhere and they were also restrained from trespassing or remaining on or using the suit land parcel No. Tiriki/Shamakhokho/1442. The 90 days given to the 2nd and 3rd defendants expired on 24th September, 2020 and the respondents have not fulfilled any of the above court orders. There is no stay of the court orders. Court orders must be obeyed. I find that the application is merited and I grant the following orders;
1. This honourable court be pleased to issue an eviction order for the forceful ejection of the 2nd and 3rd defendants, their relatives, servants, agents and or anybody claiming through them from the suit land parcel No. Tiriki/Shamakhokho/1442 forthwith.
2. That the 2nd and 3rd defendants be and are hereby ordered to forthwith exhume the bodies of the 1st defendant Luke Asang’asa and Flora Ayega both deceased from the suit land parcel No. Tiriki/Shamakhokho/1442 and for them to bury the bodies elsewhere and in default the exhumation and preservation at the morgue or burial be carried out at their cost.
3. The O.C.S. – Serem police station to effect and enforce these orders.
4. Costs of this application be borne by the 2nd and 3rd defendants/respondents.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 15TH DECEMBER 2020.
N.A. MATHEKA
JUDGE