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ELCDismissed· [2019] KEELC 3944 (KLR)

Josphat Kole Daniel v Neukirchener Mission (Aic Church) & 2 others [2019] KEELC 3944 (KLR)

Environment and Land Court
5 April 2019
JOJ.O. Olola
2,164 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Malindi allowed a widow's burial on disputed land because the objector held no registered title or strong claim against the owner's.

What this practically means

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Executive summary

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The Plaintiff, Josphat Kole Daniel, moved the Environment and Land Court at Malindi by Notice of Motion dated 1st April 2019 seeking an interlocutory injunction restraining the Defendants from burying the remains of the late Violet Mungatana on Plot No. 1154 Ngao, which he claimed belonged to him, together with a direction to the OCS Garsen Police Station to enforce the orders. He alleged that his family had donated one acre of land to the 1st Defendant Church under a temporary trust, and that the church colluded with the 2nd Defendant to sell the land to the 3rd Defendant in 2002 contrary to that trust. The 3rd Defendant, Danson Buya Mungatana, opposed the application, raising a Preliminary Objection on grounds of limitation and sub judice before the defunct Land Disputes Tribunal, asserting joint purchase of the property with his late wife, and citing the prejudice of an imminent burial. The court declined to determine the Preliminary Objection since the 1st and 2nd Defendants had not yet been served. Applying Giella v Cassman Brown, and guided by Mrao and Nguruman, the court held that the Plaintiff had failed to establish a prima facie case: the 3rd Defendant held a title deed issued on 28th May 2013 for LR No. Tanadelta/Ngao 'A'/108, and the Plaintiff produced no evidence linking the allegedly trusted acre to the registered parcel, nor sought cancellation of the title or pleaded any Section 26 grounds to challenge it. As registered proprietor, the 3rd Defendant could not be denied the right to bury his wife on the land. The application was dismissed with costs to the 3rd Defendant.

Key legal issues

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01

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

Holding

The court found none. The 3rd Defendant produced a Sale Agreement dated 4th October 2002 and a title deed issued on 28th May 2013 for LR No. Tanadelta/Ngao 'A'/108. The Plaintiff annexed nothing linking the unadjudicated one acre allegedly donated to the church to the registered parcel, and did not seek cancellation of the title.

Reasoning

The court applied the Giella test and Mrao's definition of a prima facie case. The Plaintiff's claim rested on a trust alleged over unadjudicated land, but he provided no nexus between that land and the parcel now registered in the 3rd Defendant's name. Under Sections 24 and 26 of the Land Registration Act, the 3rd Defendant's title is prima facie indefeasible, and the Plaintiff raised none of the statutory grounds (fraud, misrepresentation, or corrupt acquisition) to challenge it.

p. 3
02

Whether the 3rd Defendant could be restrained from burying his wife on the suit property

Holding

No. As registered proprietor, the 3rd Defendant has all rights and privileges appurtenant to his registration, including the right to inter the remains of his deceased wife on the property.

Reasoning

Once the court found the registration vested absolute ownership in the 3rd Defendant under Section 24 of the Land Registration Act, there was no legal basis to deny him the privilege of burying his wife on his own land. The interlocutory injunction failing on the first Giella ground, the application had to be dismissed with costs to the 3rd Defendant.

p. 3

Legal principles established

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  • A registered proprietor enjoys the rights and privileges appurtenant to registration under Sections 24 and 26 of the Land Registration Act, and the title is indefeasible except on grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition
  • The conditions for granting an interlocutory injunction are the Giella v Cassman Brown tripartite test: prima facie case with probability of success, irreparable injury not adequately compensable in damages, and balance of convenience
  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and a probability of success upon trial

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 1st April 2019 is dismissed
  2. 2.Costs of the application awarded to the 3rd Defendant

Authorities

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Legislation

  • Land Registration ActSection 26
  • Land Registration ActSection 24

Cases cited (3)

  • Giella –vs- Cassman Brown & Company Ltd
    (1973) EA 358
  • Mrao Ltd –vs- First American Bank Ltd & 2 Others
    (2003) KLR 125
  • Nguruman Limited –vs- Jan Bonde Nielsen & 2 Others
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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, "Josphat Kole Daniel v Neukirchener Mission (Aic Church) & 2 others [2019] KEELC 3944 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3944/eng@2019-04-05

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