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ELCPartially AllowedNot stated in judgment· [2017] KEELC 3069 (KLR)

Peter Karuiki Karinge & 2 others v Karuiki Muchai [2017] KEELC 3069 (KLR)

Environment and Land Court
28 February 2017
DOD. O. Ohungo
1,636 words in judgment
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The bottom line

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A Kenyan landowner who buried a relative on disputed land despite a court order was found in contempt, though immediate exhumation was refused.

What this practically means

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Executive summary

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This is a ruling by D. O. Ohungo J of the Environment and Land Court at Nakuru, delivered on 28th February 2017, on a Notice of Motion dated 16th January 2017 in a land suit over Mau Summit/Molo Block 2/158 (Mona), filed on 21st December 2016 by plaintiffs claiming to be its registered proprietors. On 21st December 2016 Ombwayo J had granted an injunction restraining the defendant from burying the body of Wangari Muchai on the suit land; the extracted order, carrying a penal notice, was served on the defendant on 22nd December 2016. The defendant neither responded to the application nor attended the hearing, which proceeded unopposed. The application sought committal of the defendant to civil jail, a warrant of arrest, exhumation of the body, and oversight of the exhumation by the OCS Molo Police Station. The court found service and breach proved and uncontradicted, and held the defendant in contempt, relying on the Teachers Service Commission case on the rule-of-law rationale for contempt. However, the court declined to order immediate exhumation, holding that exhumation is a draconian and untidy measure for exceptional situations and that the issue is best resolved at the final hearing once ownership of the land is determined, following Hellen Cheroni Kimurgor v Esther Jelagat Kosgei. The court ordered service of a notice to show cause why the defendant should not be punished for contempt, granted leave to amend the plaint to include exhumation within 14 days, directed that the suit be fast tracked, and awarded costs to the plaintiffs.

Key legal issues

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01

Whether the defendant was in contempt of the court order restraining burial on the suit land

Holding

The defendant was in contempt: the order was granted on 21st December 2016, extracted and served with a penal notice on 22nd December 2016, and the burial occurred on 23rd December 2016 with no contradicting evidence

Reasoning

The court found the grant, service and breach of the order undisputed. An affidavit of service proved service. The order carried a penal notice spelling out the consequences of disobedience. The plaintiffs' sworn evidence of the burial on 23rd December 2016 was uncontroverted as the defendant filed no response and did not attend the hearing.

p. 3
02

Whether the body of Wangari Muchai should be exhumed pending the hearing of the suit

Holding

Refused at the interlocutory stage; the issue of exhumation is to be determined at the hearing of the main suit, and leave was granted to amend the plaint to raise it

Reasoning

The ownership of the suit land remains to be determined at trial, and the exhumation question is best dealt with conclusively once ownership is decided. The court, guided by Hellen Cheroni Kimurgor, treated exhumation as a draconian, untidy measure reserved for exceptional situations and declined to order it at the interlocutory stage.

p. 4

Legal principles established

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  • Court orders must be obeyed; wilful disobedience is at the defaulter's own peril and constitutes contempt, especially where the order carries a penal notice
  • Exhumation is a draconian measure that courts should order only in exceptional situations, and the court retains a discretion to order disinterment where circumstances make it desirable or imperative
  • Contempt proceedings safeguard the rule of law, not the integrity of the court or the personal ego of the judge; defiance of a court order is not an option

Court orders

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  1. 1.A finding that the defendant is in contempt of court
  2. 2.The plaintiff's advocate to serve the defendant with notice to attend court to show cause why he should not be punished for contempt of court, with the date of attendance to be fixed by the court
  3. 3.The issue of exhumation to be dealt with at the hearing of the main suit; plaintiffs granted leave to amend the plaint to incorporate the issue of exhumation, to be filed and served within 14 days
  4. 4.Hearing of the suit to be fast tracked, with directions to be given by the court
  5. 5.Costs to the plaintiffs

Authorities

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Cases cited (2)

  • Teacher’s Service Commission vs. Kenya National Union of Teachers & 2 Others
    Petition No. 23 of 2013
  • Hellen Cheroni Kimurgor v Esther Jelagat Kosgei
    [2008] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit land, together with the court's inherent power to punish contempt of its orders

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, "Peter Karuiki Karinge & 2 others v Karuiki Muchai [2017] KEELC 3069 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3069/eng@2017-02-28

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