Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNotice of motion dated 10th June 2019 (arising from suit filed by plaint dated 10th November 2018)· [2019] KEELC 2515 (KLR)

Kenneth Kipkosgei Kemboi & another v Leah Tuwei & 5 others [2019] KEELC 2515 (KLR)

Environment and Land Court
18 June 2019
1,735 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

An Eldoret court stopped a family from burying their relative on land they claimed was ancestral, ruling the registered owners' title took priority.

What this practically means

#

Executive summary

#
This is an interlocutory ruling of the Environment and Land Court at Eldoret (M.A. Odeny, J) on a notice of motion dated 10th June 2019 filed by the plaintiffs, registered owners of Nandi/Baraton/1594, seeking to restrain the defendants from burying the 3rd defendant, Cornelius Cheruiyot, on the suit land pending hearing of the main suit, which seeks a permanent injunction and eviction. The plaintiffs relied on a green card showing registration by transmission following a succession cause in Eldoret High Court Succession Cause No. 263 of 2015, argued the title was indefeasible under section 24 of the Land Registration Act, and contended that no fraud had been pleaded and any issues over the estate were res judicata. The defendants, first cousins of the plaintiffs, claimed a customary trust over approximately 3 acres occupied since 1980, alleging the land was ancestral, held in trust by Kipkemboi Arap Kogo, and that Clementina Kogo secretly filed a succession cause; they also faulted the subdivision as fraudulent. Applying the Giella test, the court found the plaintiffs were registered owners whose title history (1971-2017) showed no entry for the purported grandfather and no proof of an intention to create a customary trust, noting that section 28 overriding interests existed in law but were unproven. A party aggrieved by a grant should file summons for revocation, not hold a family meeting. No caution or restriction lay on the title. Absent an injunction the plaintiffs would suffer the irreparable harm of exhuming the body. The application was allowed: the defendants were restrained from burying the deceased on Nandi/Baraton/1594 until the suit is determined, with the O.C.S. Kapsabet directed to supervise compliance.

Key legal issues

#
01

Whether the applicants established a prima facie case with probability of success

Holding

Yes - the plaintiffs are registered owners of the suit land by transmission following a succession cause, and no entry of the alleged grandfather appears in the register nor evidence of a customary trust.

Reasoning

The green card traced ownership from 1971 to 2017, showing registration by transmission after a succession cause. No entry for the purported grandfather existed in the register and no intention to create a customary trust was proved. Although section 28 of the Land Registration Act preserves overriding interests including customary trusts, no proof of such trust was found. Any grievance over the succession should have been raised by summons for revocation of grant, not a family meeting. No caution or restriction was lodged on the title.

p. 3
02

Whether irreparable harm would be suffered absent an injunction

Holding

Yes - burial of the deceased on the disputed land would expose the plaintiffs to the irreparable harm of exhuming the body if the suit succeeds.

Reasoning

The court reasoned that if the burial proceeded and the plaintiffs ultimately succeeded in the suit, the remedy of exhumation would constitute irreparable harm not compensable in damages. The balance of convenience tilted toward the registered owners, and the defendants were shown to have alternative land where they could inter the remains if they wished.

p. 3

Legal principles established

#
  • The discretion to grant a temporary injunction must be exercised reasonably, judiciously and on sound legal principles, applying the Giella test of prima facie case, irreparable harm and balance of convenience.
  • A party aggrieved by a grant of letters of administration may file summons for revocation of grant on grounds of fraud or concealment of material facts; a family meeting cannot undo what a court of law has done.

Court orders

#
  1. 1.The 1st, 2nd, 4th, 5th and 6th defendants/respondents, their families, agents, servants or any other person claiming on behalf of the 3rd defendant, now deceased, Cornelius Cheruiyot, are restrained from burying his remains on parcel Nandi/Baraton/1594 until this suit is heard and determined
  2. 2.The O.C.S. Kapsabet Police Station is directed to supervise compliance and enforcement of the order

Authorities

#

Legislation

  • Land Registration ActSection 24 (indefeasibility of title)
  • Land Registration ActSection 28 (overriding interests, including customary trusts)
  • Civil Procedure RulesOrder 11

Cases cited (2)

  • ENOCK ISIAHO MMBAITSA VS. STEPHEN MULINYA ANENE & another
    (2019) eKLR
  • Giella Casman Brown case
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to grant temporary injunctions; Land Registration Act (sections 24 and 28); Civil Procedure Rules (Order 11)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenneth Kipkosgei Kemboi & another v Leah Tuwei & 5 others [2019] KEELC 2515 (KLR)", Case Analysis (2019). Notice of motion dated 10th June 2019 (arising from suit filed by plaint dated 10th November 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2515/eng@2019-06-18

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