Augustine Barasa Khisa v Lazaro Namasake & another [2016] KEELC 541 (KLR)
The bottom line
#The Environment and Land Court in Kitale ordered the exhumation of a body buried by force on land the deceased had sold 35 years earlier.
What this practically means
#Executive summary
#Key legal issues
#Whether the deceased sold the suitland to the plaintiff
Yes. The 1980 sale agreement, the decree in Kitale SRMCC No. 181 of 1991 compelling transfer, the transfer signed by the executive officer, receipts for payments to the Settlement Fund Trustee and the charge document proved the sale.
The court relied on the written sale agreement of 9/2/1980 executed before the assistant chief and witnessed as required by law, produced as exhibit 1. The assistant chief testified to the execution. The plaintiff obtained a decree ordering the deceased to sign transfer documents, and the executive officer signed on his behalf. The plaintiff continued paying the balance owed to the Settlement Fund Trustee. The defendants' claim of kinship with the deceased was discredited in cross-examination, and evidence showed the deceased was a Ugandan with no relatives in Kenya who had returned because he had nowhere to go.
Whether it was proper for the defendants to bury the deceased on the suitland
No. The burial was forcible, without the plaintiff's consent, and the deceased had sold his entire interest in the land.
Having found the deceased had sold his entire interest, the defendants had no right to bury him on the suitland. About 200 people, including the first defendant, forcibly buried the body on 3/10/2015 after chasing away the plaintiff. The plaintiff did not consent to the burial. The first defendant admitted participating in the burial, and his asserted kinship with the deceased was found to be untrue.
Legal principles established
#- A person who has sold their entire interest in land cannot lawfully be buried on that land against the owner's wishes; a forcible burial on land sold by the deceased is improper and may be remedied by exhumation.
- A sale of land evidenced by a witnessed agreement, subsequent court-ordered transfer executed by the executive officer, and payment of the balance to the Settlement Fund Trustee proves ownership on a balance of probabilities.
Court orders
#- 1.The body of the deceased Stephen Fwamba Murunga be exhumed and buried in a public cemetery
- 2.A permanent injunction restraining the defendants or anyone acting on their behalf from trespassing on the suitland or interfering with it
- 3.The defendants to pay the costs of the suit
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes relating to land (suit concerning Plot No. 30, Nyasi Settlement Scheme)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Augustine Barasa Khisa v Lazaro Namasake & another [2016] KEELC 541 (KLR)", Case Analysis (2016). Land Case No. 126 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/541/eng@2016-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.