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ELCPartially AllowedELC Case No. 261 of 2017 (O.S)· [2017] KEELC 777 (KLR)

Eliud Timothy Mwamunga v Nyale Karisa [2017] KEELC 777 (KLR)

Environment and Land Court
24 November 2017
AOA. Omollo
1,172 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court refused to order a grave exhumed from disputed land, showing courts only grant such orders in clear cases proven to a higher standard.

What this practically means

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Executive summary

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The plaintiff/applicant moved the Court by notice of motion dated 28 August 2017 seeking, pending the hearing of his suit, an order for the exhumation of the remains of one Karisa Nyale buried on LR No. MN/III/2389, an injunction restraining the defendant from trespassing, occupying or cultivating the suit property, police security for compliance, and costs in the cause. The application was opposed by way of preliminary objection and a replying affidavit sworn by Tabu Nyale, sister to the deceased defendant, who deponed that the defendant was deceased (annexing a burial permit), that several suits over the suit property were pending (Mombasa ELC No. 3 of 2014, No. 214 of 2014 and Malindi ELC No. 177 of 2015 (O.S)), and that over 500 Barani residents had lived on plot No. 313 since 1968 and used it to bury their dead. During the pendency of the application the respondent conceded prayer 4, leaving prayer 3 (exhumation) for determination. Applying Kenya Breweries Ltd v Washington Okeyo, the court held that an exhumation order is mandatory in nature, requiring proof to a higher standard than a prohibitory injunction and granted only in clear cases and special circumstances. The applicant's admission that the respondent had settled people on the land, the existence of pending suits over the same parcel, the uncontested averment that residents buried their dead there, and the absence of evidence that the burial lowered the land's value meant the matter was not simple or clear. Prayer 3 was dismissed with liberty to pursue exhumation at the hearing of the main suit; prayer 4 was allowed; each party to bear their own costs of the application.

Key legal issues

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01

Whether an interlocutory order for exhumation (mandatory in nature) should issue

Holding

Dismissed - the applicant failed to meet the higher threshold for mandatory injunctions

Reasoning

The court applied the Kenya Breweries v Washington Okeyo criteria from Halsbury's Laws: special circumstances, matter decidable at once, simple and remediable act, or stealing a match. The existence of multiple pending suits over the same land, the applicant's admission that the respondent had settled people on the land, and the uncontested averment that residents bury their dead there meant the matter was neither simple nor clear. No foundation was laid for the claim that the burial lowered the land's value.

p. 3
02

Whether the respondent's use of the land for burials amounted to stealing a match

Holding

No - the averment that residents used the suit property to bury their dead was not contested by supplementary affidavit

Reasoning

The court found no attempt by the defendant to steal a match on the plaintiff because the plaintiff failed to rebut, by supplementary affidavit, the respondent's averment that the residents had long buried their dead on the suit property. The absence of a foundation for the claim that the burial lowered the land value further undermined the applicant's case.

p. 3

Legal principles established

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  • Mandatory injunctions (including mandatory interlocutory orders) are granted only in clear cases and special circumstances, and the standard of proof is higher than for prohibitory injunctions
  • A party who raises a preliminary objection together with factual issues abandons or loses the right to rely solely on the preliminary objection (as argued by counsel; noted but the court did not expressly rule on it)

Court orders

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  1. 1.Prayer 3 of the notice of motion (exhumation order) dismissed
  2. 2.Prayer 4 of the notice of motion allowed (restraint against trespassing, occupying, cultivating or interfering with the applicant's possession pending hearing of the suit)
  3. 3.Liberty to the applicant to pursue the claim of exhumation during the hearing of the main suit

Authorities

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Legislation

  • Constitution of Kenyaprotection of the right to own property (as invoked by the applicant)

Cases cited (1)

  • Kenya Breweries Ltd & Another vs Washington Okeyo
    (2002) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (suits concerning LR No. MN/III/2389 / plot No. 313/III/MN)

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, "Eliud Timothy Mwamunga v Nyale Karisa [2017] KEELC 777 (KLR)", Case Analysis (2017). ELC Case No. 261 of 2017 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/777/eng@2017-11-24

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