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ELCDismissedNot stated in the judgment (Kitale ELC suit filed 1/3/2017)· [2017] KEELC 2621 (KLR)

Mercy Chepkorir Chesire (Suing on behalf of the Estate of the late Stanley Kandie Chesire) v Geoffrey Ndiema [2017] KEELC 2621 (KLR)

Environment and Land Court
30 May 2017
1,076 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Kitale Environment and Land Court refused to stop a burial on disputed land, confirming that burying a relative on a property does not give anyone ownership of it.

What this practically means

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Executive summary

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The plaintiff, administrator of the Estate of Stanley Kandie Chesire, sought an interim injunction restraining the defendant from burying the remains of his deceased son, Hillary Ndiema, on land parcel Kitale Municipality Block 19/298 pending determination of the main suit filed on 1/3/2017. The plaintiff alleged that the defendant had entered a sale agreement dated 20/12/2001 with her late mother for 0.25 acres, took possession, but failed to pay the purchase price by 5th April 2002, repudiating the contract. The defendant admitted the sale agreement but asserted he paid the price by 5th April 2002, had occupied the land for over 20 years (five years initially as lessee), developed it extensively, and that his ownership had crystallised by adverse possession; he also raised a notice of preliminary objection and challenged the applicant's locus standi. Applying the established test for interim injunctions - prima facie case with probability of success, irreparable injury, and balance of convenience - the court found no evidence of payment annexed to the replying affidavit, and observed that the defendant's objections were no different from those the deceased parents could have raised; the Estate was properly represented by the Grant exhibited. Noting that the defendant occupied a definite 0.25-acre portion with his residence for at least 16 years and claimed only that portion, the court held the applicant would suffer no irreparable harm and had not established a prima facie case. Relying on Dinah Caren Ondiek Akinyi v Leukadia Ajwang Ondoro & Thadius Otieno Ondoro (2014 eKLR), the court confirmed that burial does not confer title. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the applicant met the Giella test for an interim injunction

Holding

The application failed on both the prima facie case and irreparable harm limbs, so it was dismissed

Reasoning

The defendant has occupied a definite 0.25-acre portion with his residence for at least 16 years and claims only that portion, not the whole parcel. The applicant has not enjoyed use of that portion for many years and would still be able to utilise the remaining land, so no irreparable harm was shown and no prima facie case with probability of success was established.

p. 2
02

Whether burial of remains on land confers title

Holding

Burial does not confer title, applying Dinah Caren Ondiek Akinyi v Leukadia Ajwang Ondoro & Thadius Otieno Ondoro

Reasoning

The court relied on the cited authority to hold that interring remains on a parcel of land does not confer title to the Estate or its beneficiaries, negating any suggestion that a burial would alter ownership of the suit land.

p. 2
03

Whether the applicant's locus standi was defeated by the defendant's preliminary objections and adverse possession claim

Holding

The Estate is properly represented by the applicant holding Letters of Administration, and the defendant's possession-related objections did not justify refusing to answer the claim, but his long unchallenged occupation weighed against the applicant

Reasoning

The applicant exhibited a Grant of Letters of Administration, and the defendant's objections were of a kind the deceased parents could equally have raised, so he remained obliged to respond. However, 16 years of occupation without any attempt at eviction suggested the applicant had been sleeping on her rights.

p. 2

Legal principles established

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  • The mere act of interring the remains of a deceased person on a parcel of land does not confer title to that land on the Estate of the deceased person or on the beneficiaries of such Estate
  • In an application for interim injunction the applicant must establish a prima facie case with a probability of success or irreparable injury; if in doubt, the court decides on a balance of convenience

Court orders

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  1. 1.The application dated 28/1/2017 (referred to at disposition as dated 28/2/2017) seeking to restrain the defendant from burying remains on the suit land is dismissed
  2. 2.Costs of the application shall be in the cause

Authorities

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Cases cited (1)

  • Dinah Caren Ondiek Akinyi -vs- Leukadia Ajwang Ondoro & Thadius Otieno Ondoro
    2014 eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land situate at Kitale Municipality Block 19/298

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, "Mercy Chepkorir Chesire (Suing on behalf of the Estate of the late Stanley Kandie Chesire) v Geoffrey Ndiema [2017] KEELC 2621 (KLR)", Case Analysis (2017). Not stated in the judgment (Kitale ELC suit filed 1/3/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2621/eng@2017-05-30

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