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ELCPartially AllowedApplication dated 16 November 2017 in the suit filed 20 March 2017 (suit number not stated in judgment)· [2017] KEELC 231 (KLR)

Philip Kipkemoi Tonui v Joel Kiptoo Chepkwony & 4 others [2017] KEELC 231 (KLR)

Environment & Land Court
27 November 2017
892 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 ordered a family to exhume a body buried on disputed land after they ignored a court order stopping the burial.

What this practically means

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Executive summary

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The plaintiff, alleging to be the lawful allottee of Kamara Chesupeno Settlement Scheme Parcel No. 800 since 2002, sued the 1st and 2nd defendants (who never filed a defence) claiming trespass from 2013 and seeking a declaration of lawful allotment, eviction and a permanent injunction. On 13 November 2017, upon learning that the defendants intended to bury the remains of Elena Mosonik (deceased) on the suit land, the plaintiff obtained an injunction from Ohungo J, the duty judge, restraining the burial. The plaintiff alleged that despite service of that order on 14 November 2017, the defendants buried the deceased on the land. He then filed the application dated 16 November 2017 seeking exhumation of the remains within 7 days, security and supervision of the exhumation by the OCS Mau Summit Police Station, the area Chief and/or Assistant Chief and the Public Health Officer, Nakuru County, and a mandatory injunction restraining further burials or interference with the suit land. The defendants, though served, filed nothing in response. Munyao Sila J found, on the affidavit of service of Benjamin Randiga, that the defendants were duly served and deliberately buried the body to defeat the pending injunction application. Holding that leaving the body interred would allow the defendants to profit from violating a court order, the judge allowed prayer (b), ordering exhumation within 7 days, with liberty for the plaintiff to exhume with police and public health assistance if the defendants defaulted. The mandatory injunction was refused because the interlocutory injunction application of 13 November 2017 remained unheard.

Key legal issues

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01

Disobedience of a court restraining order by burying a body on the suit land

Holding

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

Reasoning

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.

p. 2
02

Whether a mandatory injunction should issue pending hearing of the interlocutory injunction application

Holding

Refused, because the interlocutory injunction application dated 13 November 2017 remained unheard inter partes

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Prayer (b) allowed: the 1st and/or 2nd defendants to exhume the remains of the deceased within 7 days
  2. 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. 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

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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, "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.