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ELCPartially AllowedNot stated in the judgment· [2018] KEELC 414 (KLR)

Rungare Muthoga & 2 others v Veronica Wangechi Mugereki [2018] KEELC 414 (KLR)

Environment and Land Court
17 December 2018
LWL N Waithaka
557 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court held that burying a person on land despite a court order banning the burial is contempt of court, even if you claim a right to the land.

What this practically means

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Executive summary

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On 23rd August 2017 the applicant, Veronica Wangechi Mugereki, obtained an order restraining the 2nd and 3rd respondents, their families, servants and agents, from burying the remains of Rungare Muthoga (the deceased) on parcel LR No. Aguthi/Gititu/64. She then applied, by an application dated 24th August 2017, for exhumation of the remains and for the respondents to be punished for contempt, alleging the order had been served and disobeyed. The respondents denied service and justified the burial on the deceased's asserted entitlement to the land by adverse possession. The applicant filed further affidavits, including one by the police officer (Dina Mwita) who participated in service, confirming service. The court framed one issue: whether the applicant had made out a case for the orders sought or any of them. It found service proved on the affidavit evidence, held the respondents' reasons could not excuse disobedience, and cited them for contempt, ordering them to show cause within 14 days why they should not be punished. On exhumation, the court declined to decide the issue then, staying its consideration pending the main suit, noting the deceased held a decree entitling him to a portion of the suit property. The applicant having partially succeeded, she was awarded costs of the application. Ruling delivered at Nyeri on 17th December 2018 by L N Waithaka, Judge.

Key legal issues

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01

Whether the respondents were served with and disobeyed the court order restraining the burial

Holding

Service was proved and the burial amounted to disobedience warranting the citing of the respondents for contempt

Reasoning

The court relied on the affidavits of the applicant and the police officer who effected service, finding their contents credible. The respondents' denial and their assertion of a right to bury the deceased on the suit property by adverse possession did not excuse the disobedience of the subsisting order.

p. 1
02

Whether the remains of the deceased should be exhumed

Holding

The exhumation question was stayed pending the hearing and determination of the main suit

Reasoning

The court considered the peculiar circumstances, including that the deceased held a decree entitling him to a portion of the suit property. Rather than order exhumation on the interlocutory application, it deferred the issue until ownership questions are resolved in the substantive suit.

p. 2

Legal principles established

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  • Service of a court order, once proved by affidavit evidence, establishes culpability for contempt where no excuse exists

Court orders

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  1. 1.The respondents to, within 14 days of delivery of the ruling, show cause why they should not be punished for disobeying the court order
  2. 2.Consideration of the order for exhumation of the deceased's body stayed pending the hearing and determination of the main suit
  3. 3.The applicant awarded costs of the application
Jurisdiction invoked
Contempt of court for disobedience of an order of this Court (inherent powers in the pending suit)

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, "Rungare Muthoga & 2 others v Veronica Wangechi Mugereki [2018] KEELC 414 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/414/eng@2018-12-17

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