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ELCDismissedNot stated in the extract (Environment and Land Court suit, Eldoret)· [2021] KEELC 3417 (KLR)

Samson K A Tim v Grace Kimoi Bitok & 6 others [2021] KEELC 3417 (KLR)

Environment and Land Court
5 May 2021
SKS. M. Kibunja
1,081 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Eldoret refused to set aside a contempt and exhumation order, holding that a bare claim of non-service, with no evidence or appeal, fails.

What this practically means

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Executive summary

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The 7th Defendant, Mathew Kipruto Bitok, moved the court by Notice of Motion dated 10th March, 2020 seeking to set aside the ruling of 12th February, 2020, by which he had been found in contempt of a restraining order of 27th May, 2019 (extended on 29th May, 2019) after burying his late wife on parcel Lembus/Torongo/791, together with an order of 20th February, 2020 requiring exhumation within 45 days under supervision of the OCPD and County Public Health Officer. He also sought cross-examination of process servers, contending he was never served with the court papers or orders, that he was not originally a party, and that the burial site is a family graveyard; he further asserted his interest as a beneficiary in Nakuru Succession Cause No. 57 of 2008 and disputed the plaintiff's paper subdivision of Lembus/Torongo/402. The Plaintiff opposed, averring that the order of 27th May, 2019 was served on the 7th Defendant in the presence of the OCPD, and on his advocates, M/s Tarus & Company, and that the burial defied the order. The court framed two issues: whether the 7th Defendant had made out a reasonable case for setting aside the orders, and costs. Holding that the question of service had been determined in the 12th February, 2020 ruling, that no material or evidence was presented warranting review, that no appeal was lodged, and that cross-examination of an unnamed process server had no reasonable basis, the court found the application without merit and dismissed it with costs to the Plaintiff. The exhumation order therefore remains in force. Judgment delivered virtually at Eldoret on 5th May, 2021 by S. M. Kibunja, J.

Key legal issues

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01

Whether the orders of 12th February, 2020 (finding of contempt and order of exhumation) should be set aside for alleged non-service

Holding

No; the court had already found in its ruling of 12th February, 2020 that the 3rd, 6th and 7th Defendants were served with the order of 27th May, 2019, and no material was presented to warrant review, nor was any appeal filed.

Reasoning

The court noted that the question of service had already been addressed in the ruling of 12th February, 2020, which found the 7th Defendant in contempt for burying his late wife on Lembus/Torongo/791 in breach of the restraining order. The record showed service effected in the presence of the OCPD and upon the 7th Defendant's advocates. Without fresh material or an appeal, the finding could not be revisited, and cross-examination of an unnamed process server had no reasonable basis.

p. 2
02

Costs of the application

Holding

The 7th Defendant, having failed, to pay the Plaintiff's costs.

Reasoning

The court found the application devoid of merit; the 7th Defendant's claim of non-service was contradicted by evidence that the order was explained to him before the OCPD and served on his advocates. An unsuccessful litigant ordinarily bears the costs, so the application was dismissed with costs to the Plaintiff.

p. 2

Legal principles established

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  • A party seeking to set aside a ruling on grounds of alleged non-service must present material or evidence warranting that course, or file an appeal; a bare allegation of non-service, contradicted by the record, does not suffice.
  • Where a court order was clear and unambiguous and the party was briefed on its contents, a claim of lack of service has no basis.

Court orders

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  1. 1.The 7th Defendant's Notice of Motion dated 10th March, 2020 is dismissed with costs
  2. 2.The 7th Defendant to pay the Plaintiff's costs of the application
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit land (parcels Lembus/Torongo/402 and subdivisions 790-792); application to set aside orders in that suit

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samson K A Tim v Grace Kimoi Bitok & 6 others [2021] KEELC 3417 (KLR)", Case Analysis (2021). Not stated in the extract (Environment and Land Court suit, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3417/eng@2021-05-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.