Martha Kigen v Johana Tibino [2014] KEELC 252 (KLR)
The bottom line
#A Kenyan court ordered a man to exhume his father's remains from land he didn't own, confirming that burial custom cannot override someone's property rights.
What this practically means
#Executive summary
#Key legal issues
#Absence of a written sale agreement
Failure to adduce a written agreement was not fatal since the plaintiff's claim rested on the adjudication determination, not on enforcing a sale.
Section 3 of the Law of Contract Act requires writing, but the plaintiff was not suing to enforce a sale; the agreement was only historical background. Ownership was established by the adjudication process, which had demarcated the land to Willy Kigen.
Validity of the DLASO's 2011 deletion of parcel No. 3969
The Adjudication Officer was rectifying an anomaly, not determining an objection, and could not be faulted; the defendant's remedy was against the Adjudication Officer, not self-help.
The parcel did not exist on the ground or in the maps; the entry was erroneously made. The defendant's judicial review challenge was dismissed as filed out of time, and the Adjudication Officer was not party to the counterclaim, so the court could not nullify the decision in these proceedings.
Consent of the Adjudication Officer under Section 30
Section 30 did not bar this suit because the adjudication process had already determined the parties' rights; the claim was for trespass/interference with possession.
Section 30 exists to leave rights-determination to the adjudication machinery. Once rights are determined, a claim alleging interference with quiet possession may be filed without consent. The Keiyo District case was distinguished as it concerned pending objections.
Locus standi - want of letters of administration
The plaintiff, being in possession, could sue in trespass without letters of administration; the suit was not brought for the estate of Willy Kigen.
Trespass is actionable at the suit of the person in possession, even one without title or one in adverse possession. The suit sought protection of possession, not recovery of estate property. In any event Article 159(2)(d) would have permitted adjudication on the merits.
Burial on the suit land and exhumation
The defendant's interment of his father's remains on land in which he had no interest was wrongful trespass justifying an exhumation order; custom was no defence.
Burial was done in land adjudicated to the Kigen family. Proprietary rights cannot be infringed by invoking custom. The only effective remedy was disinterment, which the court ordered with regret and respect for the deceased.
Counterclaim for want of verifying affidavit
The counterclaim was not struck out for want of a verifying affidavit as no injustice was caused, but it failed on the merits.
The absence of the verifying affidavit caused no injustice, so striking out was refused. On the merits, the defendant failed to prove that parcel No. 3969 existed or that the DLASO acted ultra vires.
Legal principles established
#- Trespass is actionable at the suit of the person in possession of land even if that person is neither owner nor derives title from the owner.
- Section 30 of the Land Adjudication Act bars civil suits over land in an adjudication section only while rights are still under adjudication, not after the adjudication process has determined them.
- Customary law cannot justify burial on land in which the burying party has no proprietary interest.
- Where rights were determined through adjudication, proof of a written sale agreement is unnecessary; the determination in the adjudication process is proof of ownership.
Court orders
#- 1.Declaration that the defendant had no right to inter the remains of his father in L.R No. 1104 Kapluk Adjudication Scheme (Baringo Adjudication Area).
- 2.Defendant ordered to disinter the remains of Kaptumo Tibino from the suit land within 15 days, with the plaintiff to contact the Public Health Officer Baringo to assist; in default the plaintiff free to apply for an order to exhume.
- 3.Permanent injunction restraining the defendant, his servants, agents and/or assigns from occupying, wasting or otherwise interfering with the plaintiff's quiet possession of parcel No. 1104 Kapluk Adjudication Scheme.
- 4.Defendant to bear the costs of the suit and of the counterclaim.
- Jurisdiction invoked
- Environment and Land Court original civil jurisdiction (suit by plaint); Article 159(2)(d) Constitution referenced
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martha Kigen v Johana Tibino [2014] KEELC 252 (KLR)", Case Analysis (2014). Eldoret Environment & Land Case (formerly Eldoret High Court JR No. 28 of 2011 referred to; this suit filed by plaint 7 October 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/252/eng@2014-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.