Obul & 2 others (Suing on their own Behald and on Behalf of others) v KCA University & another (Enviromental and Land Originating Summons E011 of 2020 & Environment and Land Miscellaneous Application E015 of 2022 (Consolidated)) [2025] KEELC 4093 (KLR)
The bottom line
#KCA University lost its bid to demolish structures, evict occupants and exhume graves because it offered no specific evidence—litigants must use the execution procedure already in their decree.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant, as decree holder, is entitled to orders for demolition of structures said to remain on the suit land
- 2.Whether a permanent injunction should issue restraining the Respondents from trespassing on or encroaching on the suit land
- 3.Whether the court should order exhumation and reburial of the Respondents' graves on the suit land
- 4.Whether the application amounts to a review of the consent judgment/decree without demonstrated grounds
Key legal issues
#Whether a decree holder should be granted demolition and injunction orders on an executed consent decree
Refused - the decree already provided for voluntary moving or eviction with police assistance, and no evidence showed structures remained on the land or that Respondents re-entered
The decree of 6th December 2023 already contained machinery for enforcement, including voluntary vacation or eviction with police assistance through the OCPD. A decree holder must use the ordinary execution procedure. The Respondents swore they vacated and demolished their homes, and the Applicant adduced no particulars of surviving structures or of re-entry, so the orders would be made in vain.
Whether exhumation and reburial orders could issue on the material presented
Refused - the prayer was too general and ambiguous and the threshold of special, unique and compelling circumstances was not met
Following Concelia Ondieki v Grace Achieng Otieno, exhumation is drastic and offensive to cultural and religious beliefs, and is granted only in special, unique and compelling circumstances where the applicant's rights override those of the deceased's family. The Applicant provided no particulars of the number of graves or the deceased persons, rendering the prayer too general and ambiguous.
Whether the application operated as an impermissible review of the consent judgment
Yes - no grounds for review of the consent judgment were demonstrated
The suit had been finalized by a consent order resulting in the decree of 6th December 2023. The orders sought would effectively modify that consent. The court accepted the Respondent's submission that grounds for review of the consent judgment had not been demonstrated, and accordingly dismissed the application.
Legal principles established
#- Demolitions and evictions have serious consequences and a party seeking them must prove sufficiently that they will be lawful
- An exhumation order is drastic and should only be granted in special, unique and compelling circumstances, with the burden on the applicant
Court orders
#- 1.The Notice of Motion dated 2nd August, 2024 is dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 159(1), 2(a) and (d) of the Constitution; sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule (1) of the Civil Procedure Rules 2010
Relief refused
#Order for removal/demolition of structures encroaching on KISUMU LR 24810
Respondents averred they moved out and demolished their houses; Applicant gave no particulars of structures still on the land
Permanent injunction restraining trespass on the suit land
Suit already finalized; no evidence Respondents re-entered the land
Order for exhumation and reburial of Respondents' graves outside the suit land
No particulars given; exhumation is a drastic order requiring special, unique and compelling circumstances
Police assistance to enforce the orders
Follows automatic refusal of the substantive prayers
Costs
No orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The court finds that the application lacks merit and is hereby dismissed. No orders as to costs. Orders accordingly.
Demolitions and evictions have serious consequences and a party seeking the same must prove suficiently that the intended demolitions and/or evictions will be lawful.
An order for exhumation of the remains of a deceased person is a drastic and unpleasant order, grant of which should only be made in special, unique and compelling circumstances.
Court orders are not made in vain.
Issues in the judgment
#The party roles are inconsistently labelled - the motion is brought by the 'Applicant' (also styled 1st Defendant/Applicant in the coram) against 'Respondents' who are elsewhere the Plaintiffs/Respondents, while the body of the judgment describes the Applicant as the decree holder and Plaintiff
Numbering of paragraphs is irregular (a second paragraph numbered 1 and numbering such as 2.6 and 28 appear)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Obul & 2 others (Suing on their own Behald and on Behalf of others) v KCA University & another (Enviromental and Land Originating Summons E011 of 2020 & Environment and Land Miscellaneous Application E015 of 2022 (Consolidated)) [2025] KEELC 4093 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4093/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.