Case ID:174718

Samson K A Tim v Grace Kimoi Bitok & 6 others [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 346 of 2013

Parties:

Samson K A Tim v Grace Kimoi Bitok, Collins K Bitok, Elvis K Bitok, Nelson O Odhiambo 286, Attorney General, Thomas Kiptim & Mathew Kipruto Bitok

Date Delivered:

05 May 2021

Case Class:

Civil

Court:

Environment and Land Court at Eldoret

Case Action:

Ruling

Judge(s):

Stephen Murigi Kibunja

Citation:

Samson K A Tim v Grace Kimoi Bitok & 6 others [2021] eKLR

Advocates:

M/s Koech for the 7th Defendant/Applicant

Court Division:

Environment and Land

County:

Uasin Gishu

Advocates:

M/s Koech for the 7th Defendant/Applicant

History Advocates:

One party or some parties represented

Case Outcome:

Notice of motion dismissed

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 OF KENYA AT ELDORET

E & L CASE NO. 346 OF 2013

SAMSON K. A. TIM....................................................................PLAINTIFF

VERSUS

GRACE KIMOI BITOK.....................................................1

ST

DEFENDANT

COLLINS K. BITOK.........................................................2

ND

DEFENDANT

ELVIS K. BITOK...............................................................3

RD

DEFENDANT

NELSON O. ODHIAMBO 286........................................4

TH

DEFENDANT

HON. ATTORNEY GENERAL..........................................5

TH

DEFENDANT

THOMAS KIPTIM.............................................................6

TH

DEFENDANT

MATHEW KIPRUTO BITOK...........................................7

TH

DEFENDANT

RULING

[

NOTICE OF MOTION DATED 10

TH

MARCH, 2020

]

1.

Mathew Kipruto Bitok

, the 7

th

Defendant, filed the above application seeking to have the ruling delivered on the 12

th

February, 2020 and all consequential orders set aside; process servers be summoned for cross examination, and costs. The application is based on the six

(6)

grounds on its face that he had not been served with the Court papers; that he was not a party in this suit; that the burial site is a family graveyard and his father is buried there; that he is a bona fide beneficiary in respect of the

Nakuru Succession Cause No. 57 of 2008

; the application and order issued on the 20

th

February, 2020 have not been served upon him. The application is also supported by the affidavit sworn by

Mathew Kipruto Bitok

on the 10

th

March, 2020. It is the 7

th

Defendant’s case that he is a son to the 1

st

Defendant and the late Joseph Kibitok Kiptim who was a brother to the Plaintiff. That he has since childhood resided on parcel Lembus/Torongo/402 which was intended for his late father, but which has been subdivided by the Plaintiff on paper into several parcels without notice of the entire family. That this suit had been against the 1

st

to 5

th

Defendants but the Plaintiff later sneaked in his son named

Thomas Kiptim

, and himself as the 6

th

and 7

th

Defendants. That the applications dated 20

th

June, 2019 and 27

th

May, 2019 were not served upon him. That he had not visited the OCPD as alleged. That the Plaintiff had misled the Court that he was the only beneficiary when obtaining the grant in

Nakuru Succession Cause No. 57 of 2008

while he does not reside on Lembus/Korongo/402. That there are no boundary marks on the ground for parcels Lembus/Torongo/790 to 792 allegedly subdivided from Lembus/Torongo/402, which remains as it was fenced by his late father and family. That the burial took place on the 1

st

June, 2019 without knowledge of the Court order. That he has challenged the grant issued to the Plaintiff in the Nakuru Succession Cause, and the issues herein will be solved in that cause. That the orders of 27

th

May, 2019 and 12

th

February, 2020 should be set aside and that of 20

th

February, 2020 stayed. That he learnt of the orders of 20

th

February, 2020 on exhumation of his late wife from a relative who had visited M/s Tarus & Company Advocates.

2. The application is opposed by the Plaintiff through his replying affidavit sworn on the 18

th

March, 2020. It is his case that the 7

th

Defendant’s application should not be allowed as the applicant has not told the truth. That M/s Tarus & Company Advocates had filed grounds of opposition and Counsel was present during the interpartes hearing on 17

th

June, 2019. That the application dated 27

th

May, 2019 to enjoin the 7

th

Defendant was allowed on the same date and order restraining him from burying the body of his late wife on parcels Lembus/Torongo/790 to 792 was issued. That on 28

th

May 2019, the order was served upon the 7

th

Defendant in the presence of the OCPD, who had called him through his sister called

Joyce Jesang Bitok’s

mobile number 0721700413. That on 29

th

May, 2019, he served the order upon M/s Tarus & Company Advocate as directed by the 7

th

Defendant. That the 7

th

Defendant assisted by 3

rd

and 6

th

Defendants proceeded to burry the body of his wife on the suit land contrary to the order of 27

th

Mary, 2019. That the 7

th

Defendant’s application is bad in law and should be dismissed with costs.

3. That the Court gave directions on the service of the application on the 11

th

March 2020, and on filing of written submissions on the 27

th

May, 2020. That other mentions of 6

th

October 2020, 10

th

December 2020, 24

th

February, 2021 and the 19

th

April, 2021 took place and only the Plaintiff filed his submissions dated 30

th

June, 2020.

4. The following are the issues for the Court’s determinations;

(a) Whether the 7

th

Defendant has made a reasonable case for the setting aside of the orders of 12

th

February, 2020.

(b) Who pays the costs of the application?

5. The Court has carefully considered the grounds on the application, the affidavit evidence by both parties, the Plaintiff’s written submissions, the record, and come to the following findings;

(a) That the record confirms that the Court in its ruling on the Plaintiff’s application dated 20

th

June, 2019 delivered on the 12

th

February, 2020 found the 7

th

Defendant to be in contempt of court by burying the remains of his late wife on Lembus/Torongo/791, contrary to the restraining order issued on 27

th

May, 2019 and extended on the 29

th

May, 2019 until 17

th

June, 2019. That the Court proceeded to order the 7

th

Defendant to remove by exhumation the said body within 45 days under the supervision of the OCPD and County Public Health Officer. That in the said ruling, the issue of service upon the 7

th

Defendant among others was addressed under paragraph 5(f). The finding of the court was that the 3

rd

, 6

th

and 7

th

Defendants had been served with the order dated the 27

th

May, 2019. That there is no materials or evidence presented before the court to warrant that finding been reviewed and no appeal has been filed. There is also no reasonable basis of granting the application for cross examination of the process server who is not even named.

(b) That the order of the 27

th

May, 2020 was clear and unambiguous. That the 7

th

Defendant was briefed on its contents before the OCPD among others, and his claim of lack of service has no basis. That accordingly, the 7

th

Defendant’s Notice of Motion dated 10

th

March, 2020 is without merit and he should pay the Plaintiff’s costs.

6. That in view of the foregoing, the 7

th

Defendant’s Notice of Motion dated the 10

th

March, 2020 is dismissed with costs. It is so ordered.

Delivered virtually and dated at Eldoret this 5

th

day of May, 2021.

S. M. KIBUNJA

JUDGE

In the presence of

:

Plaintiff: Present.

Defendants: Absent.

Counsel: M/s Koech for the 7

th

Defendant/Applicant

Court Assistant: Christine and the Ruling is to be transmitted digitally by the Deputy Registrar to the Counsel on record through their e-mail addresses.