Peter Nzioka Kithongo v Maria Mwende Mulandi & 3 others [2020] KEELC 3470 (KLR)
The bottom line
#A Kenyan landowner with a title deed can block a planned burial on disputed land, because a gravesite permanently wastes the property.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case with probability of success
The Plaintiff's title deed to parcel 1067 and the letter of offer showing the 2nd Defendant had his own allocation established a prima facie case; allegations of fraud in the transfer forms could not be determined at interlocutory stage.
The court noted the Plaintiff held a title deed to parcel Makueni/Nguu Ranch/1067 and had shown the 2nd Defendant was offered his own parcel (PNK-1). The allegation that the title was fraudulently obtained required evidence and cross-examination, so it could not be resolved at the interlocutory stage. Applying Section 26 of the Land Registration Act, the certificate of title was treated as conclusive evidence of proprietorship at that stage, satisfying the first Giella principle.
Irreparable injury not compensable by damages
Burial of the deceased on the suit land would amount to a wasting of the property that could not be compensated by damages, even though there is no property in a dead body.
The court accepted counsel's submission that there is no property in a dead body and burial confers no ownership. However, it held that once a body is buried on the land, the gravesite cannot be put to any other use, and if the Plaintiff ultimately succeeds, the gravesite would amount to wasting of the suit property which damages cannot compensate.
Balance of convenience
The balance of convenience tilts in favour of the Plaintiff/Applicant, following from the findings on the first two Giella principles.
Having found a prima facie case and that burial would cause uncompensable wastage of the suit property, the court held the balance of convenience favoured the Plaintiff. No independent analysis was undertaken beyond the conclusions on the first and second principles.
Legal principles established
#- A certificate of title is conclusive evidence of proprietorship at the interlocutory stage under Section 26 of the Land Registration Act
- Burial on disputed land constitutes a wasting of the property that damages cannot adequately compensate
Court orders
#- 1.Temporary injunction restraining the 2nd Defendant, Muinde Masila Kitati, his agents, administrators and/or executors from burying the body of the late Francisca Tabitha Muinde anywhere within parcel LR Makueni/Nguu Ranch/1067 pending hearing and determination of the main suit
- 2.Costs of the application to be in the cause
- Jurisdiction invoked
- Not expressly stated; interlocutory jurisdiction over the pending land suit under the Civil Procedure Rules (Order 40) and the Land Registration Act invoked by the parties
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Miriam Anyango Opiyo & another v. (Defendant)[2011] KEHC 2670 (KLR)27 May 2011
Cite this brief
#Cite this brief
Caselaw, "Peter Nzioka Kithongo v Maria Mwende Mulandi & 3 others [2020] KEELC 3470 (KLR)", Case Analysis (2020). Not stated in the judgment (ELC suit, Makueni). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3470/eng@2020-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.