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ELCDismissedNot stated in the judgment· [2019] KEELC 3969 (KLR)

Anne Karegi Bett v Merio Olamroi & 2 others [2019] KEELC 3969 (KLR)

Environment and Land Court
28 March 2019
COChristine Ochieng
2,163 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 refused to order the exhumation of a body buried on disputed land, ruling that ownership must first be settled at trial.

What this practically means

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Executive summary

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The court delivered a ruling on two Notice of Motion applications by the plaintiff, Anne Karegi Bett, a registered co-proprietor of land parcel KAJIADO/LORNGUSUA/1299. The first application sought a mandatory injunction compelling the 2nd and 3rd Defendants to exhume the body of the deceased 1st Defendant, which they buried on the suit land on 15th March 2018 despite an injunction and demolition order issued by Justice Charles Kariuki on 9th March 2015. The second sought that the 2nd and 3rd Defendants be cited for contempt and committed to civil jail for disobeying that order. The Defendants opposed both applications, contending the 1st Defendant was the true owner of the land, that the land was fraudulently sold to the plaintiff by Sarinke Ole Lempesai (now facing criminal charges), that the deceased was buried by the community in accordance with Maasai customary rites, and that exhumation would be sacrilegious to Maasai customs. The court framed two issues: whether a mandatory exhumation order should issue, and whether the Defendants were in contempt. Relying on Elliud Kingwara Adawo v Philip Achieng John, it declined to order exhumation because ownership of the land is the main dispute pending trial, directing that status quo be maintained. On contempt, although the court found the Defendants were aware of the injunction, the order did not specifically restrain burial, and the claim that the community buried the deceased was uncontroverted; the contempt application was declined at this juncture. Both applications were found unmerited and disallowed. The Defendants were restrained from interfering with the suit land pending trial, with contempt reserved for any breach. Costs were awarded in the cause.

Key legal issues

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01

Whether a mandatory injunction should issue to compel exhumation of the body buried on the suit land

Holding

The court declined to grant the exhumation order at this stage, deferring to the trial on ownership.

Reasoning

Both the plaintiff and the 1st Defendant claim ownership of the suit land. Relying on Elliud Kingwara Adawo v Philip Achieng John, the court reasoned that exhuming the body before final determination of ownership risks disturbing it unnecessarily if the plaintiff turns out to have no right over the land, while leaving the body in place does not prejudice the plaintiff's claim. Status quo is to be maintained pending trial.

p. 2
02

Whether the 2nd and 3rd Defendants are in contempt of the order of 9th March 2015

Holding

The contempt application was declined at this juncture, but Defendants were restrained from further interference with the suit land on pain of being cited for contempt.

Reasoning

Applying the four elements of civil contempt from North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi, the court found the Defendants, being represented by counsel, were aware of the injunction. However, the order did not specifically stop burial of the 1st Defendant on the land, and the Defendants' claim that the community buried the deceased was uncontroverted by the plaintiff. Contempt was therefore declined at this stage, with an interdict against further interference.

p. 3

Legal principles established

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  • Where the dispute over ownership of land is the main contention, exhumation of a body buried on the land should be deferred until the suit is determined, absent compelling reasons
  • Four elements must be proved for civil contempt: clear and unambiguous terms of the order binding on the defendant, knowledge or proper notice, breach, and deliberate conduct

Court orders

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  1. 1.Both Notice of Motion applications dated 16th March 2018 and 20th April 2018 are disallowed as unmerited
  2. 2.Status quo to be maintained until the suit is heard and determined
  3. 3.Defendants restrained from interfering with the suit land pending the outcome of the suit, failing which they will be cited for contempt
  4. 4.Parties urged to comply with Order 11 and set the suit down for hearing as soon as possible
  5. 5.Costs in the cause

Authorities

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Legislation

  • Contempt of Court ActSection 27(b)
  • Contempt of Court ActSection 28(1)
  • Civil Procedure Rules (Order 11)Order 11

Cases cited (6)

  • Elliud Kingwara Adawo v Philip Achieng John & another
    [2015] eKLR
  • Hadkinson -vs- Hadkinson
    (1952) ALLER 567
  • Africa Management Communication International Limited Vs Joseph Mathenge Mugo & Another
    (2013) eKLR
  • Mwangi H. C Wangondu Vs Nairobi City Commission
    Civil Appeal No. 95 of 1988
  • Refrigerator & Kitchen Utensils Limited Vs Gulabchand Popatlal Shah & Others
    Civil Application No. Nai 39 of 1990
  • North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi
    (2016) eKLR
Jurisdiction invoked
Original civil jurisdiction over land disputes (Environment and Land Court Act); not expressly cited in the judgment

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, "Anne Karegi Bett v Merio Olamroi & 2 others [2019] KEELC 3969 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3969/eng@2019-03-28

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