A family in Khayega, Kakamega East, has been ordered to exhume the body of a woman buried on disputed land.
Mathias Shibutse and his siblings went ahead and buried their mother, Lusitina Lisili, on the land despite a court order.
The court had barred Shibutse, his relatives or agents from burying Lisili on the said land until a suit filed against him over the property is determined.
Senior Resident Magistrate Eric Malesi, on Friday, ordered that the body be exhumed and preserved at St Elizabeth Hospital Mortuary awaiting inter-party hearing on July 25.
“I have considered the application which is unopposed and the urgency of the prayer sought (to exhume) is manifest. An order is hereby issued for the body/or remains of Lusitina Lisili, interred on June 28, on the suit property be exhumed from the land in question and be preserved at St Elizabeth Mortuary Mukumu pending the hearing of the application on July 25,” Mr Malesi said.
The plaintiff, Reuben Mutsalali, moved to court to stop the defendant’s family from burying the deceased on the 0.7-hectare land he claimed he had bought from their father.
In his court documents, the plaintiff swore that he was the valid owner of the land he bought 1982 having paid the requisite Sh15,000 fee as per their agreement.
Mutsalati, who bears the title deed, swore the land was transferred to him by the late Richard Lisili Shibutse upon completion of the purchase price but Lisili and her children refused to vacate.
The Chief Magistrate Bildad Ochieng’ issued temporary injunction barring Lisili’s burial on the said land but the respondent still went ahead to inter her remains.
Mutsalati, through lawyer Michael Kiveu, went to court under a certificate of urgency seeking exhumation.
“The proprietor’s wife, now deceased, implicitly breached the said agreement by refusing to give vacant the possession of the suit land by alternatively not moving to her portions bordering the disputed land,” he avers.
He added: “The actions of the respondents, if not immediately countered, will greatly undermine the dignity of this court, encourage impunity and foster the rule of the jungle over the rule of law.”
Mutsalali noted he has been unable to take over the property.
In a replying affidavit, Shibutse says the plaintiff’s title deed was fraudulently acquired. He claimed the sale documents were nullified by the area chief.
“The parcel is an ancestral land and the purported seller did not consult the family members, including his two wives resulting into the rejection of the said sale. I buried my wife on the same land in 2012, a whole 30 years after the purported sale, yet the plaintiff never raised any queries,” Shibutse said.
He said his father was buried on the same land. The case will be heard on July 25.