Everlyne Andiva Maloba v Phelix Esabu Omido [2017] KEELC 332 (KLR)
The bottom line
#A Kakamega court let a son bury his father after finding no valid legal basis to stop the burial, and gave him more time to defend the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the interim/injunctive orders of 26th July 2017 were properly granted on the Giella v Cassman Brown principles
The court accepted the applicant's submission that no prima facie case was established and varied the orders, permitting release of the body for burial but not on the fictitious parcel 905/GIMARIAN/MWEMBE
The applicant contended that the parcel 905/GIMARIAN/MWEMBE on which the plaintiff sought to restrain burial does not exist in the Land Registrar's records, that the deceased never sold any land to the plaintiff, and that the agreements relied on were forgeries with discrepant consideration figures. The respondent did not appear or oppose the application despite service. In the absence of opposition, and given the doubt over the existence of the suit parcel and the absence of a prima facie case, the court varied rather than discharged the orders, balancing the applicant's right to bury his father against the pending substantive suit.
Whether the applicant should be granted leave to defend out of time
Leave was granted to enter appearance and file defence out of time within 14 days
The applicant explained that his advocate failed to enter appearance, file a defence and replying affidavit in time, and was absent when the application was canvassed ex parte. Relying on the principle that an advocate's mistakes should not be visited on an innocent party, and noting that the draft defence raises serious triable issues, the court enlarged time in the interest of justice.
Legal principles established
#- The mistakes of an advocate should not be visited upon an innocent ignorant party, justifying enlargement of time to file defence
Court orders
#- 1.Leave granted to the applicant to enter appearance and file defence and serve out of time in terms of the draft Memorandum of Appearance and Defence attached, within the next 14 days
- 2.Orders made on 26th July 2017 varied so that an order be issued directing the in-charge ST. MONICA HOSPITAL MORTUARY in KISUMU to release the body of the late EZEKIEL ESABU ODEMU to the applicant PHELIX ESABU OMIDO for burial elsewhere other than on 905/GIMARIAN/MWEMBE
- 3.The O.C.S. SEREM POLICE STATION to ensure compliance with the above orders and provide security to the applicant during the burial
- 4.Costs be in the cause
- Jurisdiction invoked
- Sections 3, 3A, 63(e), 80 and 95 of the Civil Procedure Act and Orders 40(7), 50(6) and 51(1) of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Everlyne Andiva Maloba v Phelix Esabu Omido [2017] KEELC 332 (KLR)", Case Analysis (2017). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/332/eng@2017-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.