Case ID:167841

Patrick Malongo Lidovolo v Luice Asang’asa(Deceased) & 2 others [2020] eKLR

Case Metadata

Case Number:

Environment and Land Case 78 of 2017

Parties:

Patrick Malongo Lidovolo v Luice Asang’asa(Deceased), Acton Musii Khalambukha & Sabeti Khalambukha

Date Delivered:

15 Dec 2020

Case Class:

Civil

Court:

Environment and Land Court at Kakamega

Case Action:

Ruling

Judge(s):

Nelly Awori Matheka

Citation:

Patrick Malongo Lidovolo v Luice Asang’asa(Deceased) & 2 others [2020] eKLR

Court Division:

Environment and Land

County:

Kakamega

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

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 12

th

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 2

nd

and 3

rd

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 2

nd

and 3

rd

defendants be demolished.

2. That the 2

nd

and 3

rd

defendants be and are hereby ordered to forthwith exhume the bodies of the 1

st

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 2

nd

and 3

rd

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 24

th

June, 2020 the 2

nd

and 3

rd

defendants were granted 90 days to vacate the suit land parcel No. Tiriki/Shamakhokho/1442 or be evicted therefrom. The 2

nd

and 3

rd

defendants were also ordered to exhume the bodies of the 1

st

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 2

nd

and 3

rd

defendants expired on 24

th

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 24

th

June, 2020 the 2

nd

and 3

rd

defendants were granted 90 days to vacate the suit land parcel No. Tiriki/Shamakhokho/1442 or be evicted therefrom. The 2

nd

and 3

rd

defendants were also ordered to exhume the bodies of the 1

st

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 2

nd

and 3

rd

defendants expired on 24

th

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 2

nd

and 3

rd

defendants, their relatives, servants, agents and or anybody claiming through them from the suit land parcel No. Tiriki/Shamakhokho/1442 forthwith.

2. That the 2

nd

and 3

rd

defendants be and are hereby ordered to forthwith exhume the bodies of the 1

st

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 2

nd

and 3

rd

defendants/respondents.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 15

TH

DECEMBER 2020.

N.A. MATHEKA

JUDGE