keelc-2019-04763

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KITALE ELC APPEAL NO. 7 OF 2006 (FORMERLY ELDORET HCC NO. 41 OF 1988) ERASTUS NDUNGU CHARAGU & ANOTHER.................APPLICANTS VERSUS ISAAC MWANGI MWAURA & 5 OTHERS......................RESPONDENTS DIRECTIONS 1. This is a ruling on an application dated 17th September 2018 filed on the same date by the plaintiff. It seeks the following orders:(1) …….(spent) (2) The court be pleased to reissue an eviction order against the respondents from the applicant’s land known as Sinyerere Kipsaina Block 3 /7145/2. (3) The OCS Kachibora Police Station be directed to ensure that the orders of the court made herein are complied with. (4) The respondents to surrender the cancelled titles to the office of the Land Registrar Trans Nzoia County. 2. The grounds upon which the application is brought are as follows:1. The court issued an eviction order on 11/11/2004. 2. The applicant has tried to evict the respondents from his land but in vain. 3. An order of this court is required in order to evict the respondents. 3. The notice of motion is supported by the sworn affidavit of Erastus Ndungu Charagu sworn on 17/9/2018. It reiterates the grounds at the foot of the application. A report is attached to the application. It is made by the office of the deputy county commissioner Trans-Nzoia; it narrates reconciliation efforts exerted by that office. 4. Grounds of opposition were filed for the respondents on 2/10/2018. They term the application as lacking in merit, incompetent and an abuse of the court process; the respondents further indicate that the 1 st 3rd 4th 5th and 6th respondents are deceased and that substitution is necessary before any orders are issued, which has not been effected. It is further stated that the 2 nd respondent is senile (84 years old) and can not give instructions, and that an order of eviction can only be issued at a final and not an interlocutory stage. Finally, it is stated that the ruling of the court issued on 22/5/2007 determined the issue of eviction and should have been appealed against or reviewed. 5. A sworn affidavit dated 9/4/2018 of Gideon Barongo Advocate representing the respondents is in the record. He states in that affidavit that he has received information from the surviving relatives of some of the respondents that the 1 st, 3rd, 4th, 5th and 6th respondents are deceased and he attaches the copies of their death certificates. According to that affidavit only the 2 nd respondent has outlived all the others and he is old frail and sickly. A medical record is exhibited to show this. In view of the foregoing, it is deponed that there is no surviving respondent who can respond to the application, and substitution of all save the 2 nd respondent is needed if proceedings are to continue. 6. I sympathize with the applicant’s situation and in my view it would be fit and just if this matter was concluded at the earliest date possible

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