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ELCDismissedNot stated in the judgment (Kiirua/Ruiru land dispute; related Succession Cause No. 474 of 2011)· [2016] KEELC 490 (KLR)

Davis Kiumbe M'Muremera v Emmanuel Gatobu Kiende & 2 others [2016] KEELC 490 (KLR)

Environment and Land Court
3 August 2016
PNP.M. Njoroge
1,703 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a woman to be buried on her late father's land, ruling that an unconfirmed probate grant gives no one exclusive ownership.

What this practically means

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Executive summary

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This was a ruling on an application dated 20th July 2016 seeking an interlocutory injunction restraining the Defendants from interring the body of the late Judith Kiende on L.R. No. KIIRUA/RUIRI/280, a 42-acre parcel registered in the name of the parties' deceased father, M'Muremera Irea Muguna. An ex parte interim injunction had been granted on 21st July 2016. The Plaintiff, who held a temporary grant of probate in Succession Cause No. 474 of 2011 and relied on a contested will, argued he had been allocated the parcel and feared that a burial in his compound would enable the Defendants to stake a future ownership claim under Kilmeru custom. The Defendants countered that the grant was unconfirmed, the will was contested, and the deceased, as a daughter of the registered owner, had an equal right to be buried on her father's land. The court, P.M. Njoroge J, applied the Giella v Cassman Brown principles and, per Mbuthia v Jimba Credit Corporation, declined to make final findings on disputed facts. He held that until a grant of probate is confirmed no beneficiary can claim full ownership of estate property, that burial does not confer ownership rights, and that constitutional rights to equality and non-discrimination under Articles 27(3) and 24(4) extend to burial. Weighing the parties' propositions, the balance favoured the Defendants. The application was dismissed, the interim orders vacated, burial permitted on the parcel but not in the Plaintiff's compound, with the O.C.S Kiirua directed to maintain order and costs in the cause.

Key legal issues

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01

Entitlement to an interlocutory injunction restraining a burial on the suit land

Holding

The application was dismissed; the Defendants were permitted to bury Judith Kiende on the parcel but not in the Plaintiff's compound

Reasoning

Applying the Giella v Cassman Brown principles and Mbuthia v Jimba Credit Corporation, the court declined to make final findings on disputed facts. The grant of probate over the father's estate was unconfirmed, so the Plaintiff could not claim exclusive ownership of the 42-acre parcel. Equality and non-discrimination rights under Articles 27(3) and 24(4) extend to burial. Weighing the parties' propositions, the balance favoured the Defendants, and the Succession Court would make definitive findings on the estate.

p. 3
02

Whether burial on land confers a proprietary claim

Holding

Burial does not necessarily confer a right to eventual ownership; disputes over the estate belong to the Succession Court

Reasoning

The Plaintiff's principal fear was that a grave in his compound would enable the Defendants to stake a claim under Kilmeru custom. The court held that burial on a 42-acre parcel need not be in the Plaintiff's compound and that burial does not create ownership rights. The pertinent issues on the contested will in Succession Cause No. 474 of 2011 would be handled by the Succession Court.

p. 3

Legal principles established

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  • Until a grant of probate is confirmed, no one person can claim full ownership of any of the properties comprising a deceased person's estate
  • Burial of a deceased person on a piece of land does not necessarily confer a right to be declared the owner of that land
  • Constitutional rights to equality and non-discrimination extend to a person's burial
  • In an interlocutory injunction application the court should not decide issues of fact but weigh the relevant strength of each side's propositions

Court orders

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  1. 1.The Plaintiff's application dated 20th July, 2016 is dismissed
  2. 2.Interim orders granted at the ex parte stage are vacated
  3. 3.The Defendants may bury the body of the deceased, Judith Kiende, on L.R. NO. KIIRUA/RUIRI/280 but not in the compound of the Plaintiff
  4. 4.The O.C.S Kiirua Police Station is ordered to ensure that law and order prevails during the burial
  5. 5.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 27(3)
  • Constitution of KenyaArticle 24(4)

Cases cited (4)

  • Giella Versus Cassman Brown & Co Ltd
    [1973] EA 358
  • Otieno Versus Ougo & Another (No. 21)
    [2008] KLR (G & F) 948
  • Mary Manga Ansetry & Another Versus Denis Murangiri Maina
    Mombasa Misc. C.A No. 49 of 2015
  • Mbuthia Versus Jimba Credit Corporation
    [1988] KLR 1
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land L.R. No. KIIRUA/RUIRI/280; injunction under the law of succession and land law

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Davis Kiumbe M'Muremera v Emmanuel Gatobu Kiende & 2 others [2016] KEELC 490 (KLR)", Case Analysis (2016). Not stated in the judgment (Kiirua/Ruiru land dispute; related Succession Cause No. 474 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/490/eng@2016-10-03

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