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ELCPartially AllowedNot stated in the judgment (Petition filed 29 May 2012, transferred to ELC on 19 January 2016)· [2016] KEELC 291 (KLR)

Naibor Ajijik Group Ranch v Agriculture Development Corporation( ADC) & 3 others [2016] KEELC 291 (KLR)

Environment and Land Court
16 March 2016
2,519 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court stopped a family from burying their relative on disputed land, ruling that registered title holders outrank claimants without title when weighing interim convenience.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (Munyao Sila J) determined two applications filed in an ongoing petition in which the Naibor Ajijik Group Ranch claims various parcels of land (LR No. 20591, LR No. 410/1, LR No. 410/2, LR No. 7265 and LR No. 7281 at Naivasha) as community land. The Agriculture Development Corporation and the Attorney General sought interim orders, most notably an injunction restraining the petitioners, and specifically Shadrack Kamaamia, from burying the body of the late Alfred Leshao Kamaamia on the suit land, together with a stay of cultivation, occupation and dealing with the properties and an expedited hearing of the petition. The petitioners opposed the applications, relying on the deceased's alleged wish to be buried where his mother and forefathers lay, invoking Maasai custom, the absence of property in a dead body, and the availability of exhumation as a remedy, and arguing the applicants were not in court with clean hands. The court treated the applications as akin to injunction applications under the Giella principles, declined to make findings on the prima facie case given the hot dispute, and decided on the balance of convenience, which favoured the title holders since the petitioners hold no title. The burial dispute authorities relied on by the petitioners were distinguished. The court allowed the application restraining the burial, sympathising with the petitioners, and reserved directions on expedition of the petition.

Key legal issues

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01

Whether the burial of the deceased on the suit land should be restrained pending determination of the petition

Holding

The application to stop the burial was allowed on the balance of convenience, as the respondents hold title to the suit land and the petitioners do not

Reasoning

The court treated the application as akin to an injunction application, adopting the Giella principles. Declining to make findings on the prima facie case given the hotly disputed claim, the court went straight to the balance of convenience. Since the petitioners hold no title and the suit seeks to wrest ownership from the title holders, convenience favours the registered owners. The alleged involvement in the deceased's death was not established against any particular person, and exhumation remains an alternative remedy if the petitioners succeed.

p. 3
02

Whether the authorities relied on by the petitioners (burial dispute cases) applied

Holding

The authorities were distinguished because they concerned disputes between parties over burial arrangements, not property owners objecting to burial on land they hold title to

Reasoning

In Mbatha the dispute was between estranged parents over the place of burial, and in Ngugi the issue was a hospital's detention of a body for unpaid bills. Neither involved a title holder resisting burial on its own land. Here the applicants do not detain the body nor seek to bury it; they simply object to interment on land they own, so the cases were distinguishable.

p. 4
03

Whether prior acquiescence in burials on the land waived the right to object

Holding

It was held that previous failure to object to other burials is not a waiver of the right to object to a future burial

Reasoning

The petitioners argued that people live and are buried on the suit land in their thousands and questioned why this death attracted objection. The court held that the respondents, as title holders, remain entitled to raise objections as to how the land is used, and past tolerance of burials does not amount to waiver.

p. 4

Legal principles established

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  • On an interlocutory application concerning burial on disputed land, where the matter is hotly disputed, the court may decide on the balance of convenience, which favours the title holder over a claimant without title
  • A title holder's past failure to object to burials on its land does not constitute a waiver of the right to object to future burials

Court orders

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  1. 1.Injunction restraining the petitioner, and specifically Shadrack M. Kamaamia, from burying the body of the late Alfred Leshao Kamaamia anywhere within the suit parcels of land (LR No. 20591, LR No. 410/1, LR No. 410/2, LR No. 7265 and LR No. 7281) pending hearing and determination of the petition
  2. 2.Directions on expedition of the petition to be given upon delivery of the ruling

Authorities

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Cases cited (4)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Dr. Christopher Muthini Mbatha vs Dr. Florence Mukii Mukita
    Nairobi HCCC No. 525 of 2008 (2008) eKLR
  • Isaac Ngugi vs The Nairobi Hospital & 2 Others
    Nairobi High Court Petition No. 407 of 2012 (2013) eKLR
  • Ludindi Venant & Another vs Pandya Memorial Hospital
    Mombasa HCCC No. 63 of 1998 (1998) eKLR
Jurisdiction invoked
Not expressly stated; matter transferred to the Environment and Land Court on 19 January 2016

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Naibor Ajijik Group Ranch v Agriculture Development Corporation( ADC) & 3 others [2016] KEELC 291 (KLR)", Case Analysis (2016). Not stated in the judgment (Petition filed 29 May 2012, transferred to ELC on 19 January 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/291/eng@2016-03-16

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