Mercy Chepkorir Chesire (Suing on behalf of the Estate of the late Stanley Kandie Chesire) v Geoffrey Ndiema [2017] KEELC 2621 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicant met the Giella test for an interim injunction
The application failed on both the prima facie case and irreparable harm limbs, so it was dismissed
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.
Whether burial of remains on land confers title
Burial does not confer title, applying Dinah Caren Ondiek Akinyi v Leukadia Ajwang Ondoro & Thadius Otieno Ondoro
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.
Whether the applicant's locus standi was defeated by the defendant's preliminary objections and adverse possession claim
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
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.
Legal principles established
#- 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
#- 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.Costs of the application shall be in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land situate at Kitale Municipality Block 19/298
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.