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ELCDismissedELCA Case No. 13 of 2019· [2020] KEELC 1981 (KLR)

Wycliffe Lurembe Shikoto v Ronald Likhaya Shikoto [2020] KEELC 1981 (KLR)

Environment and Land Court
24 June 2020
NMN.A. Matheka
1,142 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 dismissed a burial dispute appeal, holding that once the deceased was buried elsewhere, there was no live case left to decide.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kakamega against a ruling of the trial Chief Magistrate dated 24 April 2019 in a burial dispute between the appellant and the respondent over land parcel Isukha/Shirere/5952. The respondent had obtained interim injunction orders on 25 January 2019 restraining the appellant from burying their late father, Henry Lubembe Shikoto, on the suit land. The appellant buried the deceased on 9 February 2019 on a different parcel, Isukha/Shirere/6623, where the deceased had established his permanent matrimonial residence. When the matter came up on 24 April 2019, the trial court found the dispute overtaken by events and marked the matter as abated. The appellant appealed on six grounds, contending that the magistrate ignored his pleadings, defective service, the sub judice position of Kakamega High Court Land and Environment Case No. 205 of 2013, and other errors, and prayed that the appeal be allowed so that the deceased's wishes could be obeyed. The respondent argued the appeal was wild and went beyond the order appealed from. Citing Mwanasokoni v Kenya Bus Service, the court reaffirmed its duty to re-evaluate the evidence but declined to interfere with the trial court's factual findings absent absence of evidence, misapprehension, or wrong principles. The court found the appellant complied with the court order by burying the deceased elsewhere, leaving nothing to litigate. The appeal was dismissed with no orders as to costs.

Key legal issues

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01

Whether the trial court erred in finding the matter overtaken by events and abating the suit

Holding

The trial court was right: the appellant buried the deceased on 9 February 2019 on a different parcel (Isukha/Shirere/6623), settling the burial dispute

Reasoning

The interim injunction restrained burial on Isukha/Shirere/5952. The burial took place on a separate parcel where the deceased had his matrimonial residence, in compliance with the court order. Nothing remained for hearing, so the cause of action was overtaken by events and the trial magistrate's ruling was judiciously arrived at.

p. 3
02

Standard for appellate interference with findings of fact

Holding

An appellate court will not ordinarily interfere unless findings were based on no evidence, on misapprehension of it, or on wrong principles

Reasoning

Relying on Mwanasokoni v Kenya Bus Service, the court restated the duty to re-evaluate the evidence while acknowledging restraint on findings of fact. It found no misapprehension or wrong principle by the trial magistrate and therefore declined to disturb the ruling.

p. 3

Legal principles established

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  • An appellate court is duty bound to revisit the evidence on record, evaluate it and reach its own decision, but will not ordinarily interfere with findings of fact of the trial court unless based on no evidence, misapprehension of it, or wrong principles
  • Where the subject of a dispute has been overtaken by events (the deceased having been buried elsewhere), there is no live suit to hear and determine

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No orders as to costs

Authorities

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Cases cited (1)

  • Mwanasokoni v Kenya Bus Service
    (1982 - 88) 1 KAR 870
On appeal from
Chief Magistrate's Court (trial court, Kakamega)
not stated
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over orders of the trial court (statutory appeal; specific provision not stated 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, "Wycliffe Lurembe Shikoto v Ronald Likhaya Shikoto [2020] KEELC 1981 (KLR)", Case Analysis (2020). ELCA Case No. 13 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1981/eng@2020-06-24

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