Philip Kipkemoi Tonui v Joel Kiptoo Chepkwony & 4 others [2017] KEELC 231 (KLR)
The bottom line
#A Kenyan court ordered a family to exhume a body buried on disputed land after they ignored a court order stopping the burial.
What this practically means
#Executive summary
#Key legal issues
#Disobedience of a court restraining order by burying a body on the suit land
The court found on the affidavit of service that the defendants were duly served with the restraining order and buried the deceased in defiance, deliberately to defeat the injunction application before it could be heard
The defendants were served with the order of 13 November 2017 but filed nothing in response to the exhumation application and offered no explanation. The court drew the inference that the burial was done to defeat the pending injunction application, and held that permitting the body to remain would reward violation of a court order.
Whether a mandatory injunction should issue pending hearing of the interlocutory injunction application
Refused, because the interlocutory injunction application dated 13 November 2017 remained unheard inter partes
The court considered it inappropriate to grant a mandatory injunction at that stage since the substantive interlocutory injunction application was still pending and directions were reserved for its hearing. Only the exhumation relief was granted.
Legal principles established
#- Allowing a body to remain buried on land in defiance of a court order would amount to letting a party profit from violating a court order; such disobedience justifies an exhumation order
Court orders
#- 1.Prayer (b) allowed: the 1st and/or 2nd defendants to exhume the remains of the deceased within 7 days
- 2.If defendants fail to exhume, the plaintiff at liberty to exhume the body with assistance of the OCS Mau Summit Police Station, the area Chief and/or Assistant Chief, and the Public Health Officer - Nakuru, and place the body in the nearest mortuary
- 3.Mandatory injunction (prayer d) not issued; further directions given on the hearing of the application dated 13 November 2017
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the land dispute (specific constitutional/statutory provision not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philip Kipkemoi Tonui v Joel Kiptoo Chepkwony & 4 others [2017] KEELC 231 (KLR)", Case Analysis (2017). Application dated 16 November 2017 in the suit filed 20 March 2017 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/231/eng@2017-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.