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ELCDismissedEldoret CMCC No. 806 of 2016 (appeal therein; application dated 29.8.2016)· [2016] KEELC 561 (KLR)

Hellen Jemurgor Bett v John Kibet Rotich [2016] KEELC 561 (KLR)

Environment and Land Court
14 September 2016
AOAntony Ombwayo
2,661 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cannot decide who may bury a deceased person unless ownership of the burial land itself is in dispute.

What this practically means

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Executive summary

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This was an application dated 29 August 2016 by the appellant, Hellen Jemurgor Bett, seeking stay of execution of the judgment and decree of Hon. N. Moseti, Resident Magistrate, delivered on 24 August 2016 in Eldoret CMCC No. 806 of 2016, including preservation of the body of the deceased, Elena Jesum Rotuk, at the Moi Teaching and Referral Hospital Mortuary pending appeal. The underlying dispute was a family burial contest between a son and a daughter-in-law of the deceased over the burial site. The respondent opposed, principally raising a jurisdictional objection that the appeal and application did not fall within the jurisdiction of the Environment and Land Court under Articles 162(2)(b) and 165(5)(b) of the Constitution, Section 13 of the Environment and Land Court Act, 2011 and Sections 128 and 150 of the Land Act, 2012, and further arguing that the tests in Giella v Cassman Brown were not met. The court, applying the Owners of Motor Vessel 'Lilians' v Caltex Oil principle, addressed jurisdiction first and found that the dispute was purely about who should bury the deceased and where, with no dispute over environment or the use, occupation of, and title to, land. The court held that it lacks jurisdiction to determine a burial dispute per se unless there is a dispute over ownership of the intended burial land. The application was dismissed with no order as to costs, this being a family dispute.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction over a burial dispute

Holding

The court lacks jurisdiction over a pure burial dispute; such jurisdiction exists only where the ownership of the intended burial land is itself in dispute

Reasoning

The court held that its jurisdiction flows from Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act, confining it to disputes relating to the environment and the use, occupation and title to land. Both parties agreed the dispute concerned only the burial site of the deceased. There was no dispute over use and occupation of, or title to, land. A burial dispute per se, concerning who may bury the deceased and where, falls outside the Act's enumerated categories.

p. 5

Legal principles established

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  • The Environment and Land Court lacks jurisdiction to determine a burial dispute per se unless there is a dispute in ownership of the land where the burial site is intended to be established
  • A question of jurisdiction must be raised and decided at the earliest opportunity, for without jurisdiction a court has no power to take any further step

Court orders

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  1. 1.The application dated 29.8.2016 seeking stay of execution pending appeal is dismissed
  2. 2.No order as to costs, this being a family dispute
On appeal from
Eldoret Chief Magistrate's Court
Civil Case No. 806 of 2016
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, 2011

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, "Hellen Jemurgor Bett v John Kibet Rotich [2016] KEELC 561 (KLR)", Case Analysis (2016). Eldoret CMCC No. 806 of 2016 (appeal therein; application dated 29.8.2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/561/eng@2016-09-14

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