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ELCAllowedNot stated in the judgment (ELC suit, Makueni)· [2020] KEELC 3470 (KLR)

Peter Nzioka Kithongo v Maria Mwende Mulandi & 3 others [2020] KEELC 3470 (KLR)

Environment and Land Court
28 February 2020
2,630 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a ruling by the Environment and Land Court at Makueni (Mbogo C.G., J) on the Plaintiff's Chamber Summons application dated 31st December 2019, seeking a temporary injunction restraining the 2nd Defendant, Muinde Masila Kitati, from burying his deceased wife, Francisca Tabitha Muinde, on parcel LR Makueni/Nguu Ranch/1067, pending hearing of a main suit on trespass and eviction that had been pending for 18 years. The Plaintiff relied on his title deeds to parcels 1066 and 1067, contending the burial was scheduled for 3rd January 2020 and would breach interim orders issued by Nambuye J on 6th June 2002 covering parcel 1066. The 2nd Defendant opposed, asserting 69 years of occupation, a matrimonial home on the land, a prior burial of his son, and alleging the Plaintiff's title was fraudulently obtained; he also noted a government task force auditing titles in Nguu Settlement Scheme. Applying the Giella v Cassman Brown principles, the court found the Plaintiff's certificate of title conclusive evidence of proprietorship under Section 26 of the Land Registration Act at the interlocutory stage, and that allegations of fraud required evidence and cross-examination. Although accepting there is no property in a dead body, the court held burial would create a gravesite unusable for any other purpose, amounting to a wasting of the suit property not compensable by damages. The balance of convenience favoured the Plaintiff. The application was allowed in terms of prayers 3 and 5: an interim injunction restraining the burial, with costs in the cause.

Key legal issues

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01

Prima facie case with probability of success

Holding

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.

Reasoning

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.

p. 3
02

Irreparable injury not compensable by damages

Holding

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.

Reasoning

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.

p. 3
03

Balance of convenience

Holding

The balance of convenience tilts in favour of the Plaintiff/Applicant, following from the findings on the first two Giella principles.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Land Registration ActSection 26(1)(a) & (b)
  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (2)

  • Giella vs. Cassman Brown & Co. Ltd
    [1973] EA 358
  • Kenya Projects and Investments Ltd vs. Kenya Post Office Savings Bank Ltd
    Nairobi High Court Civil Case No. 2811 of 1995
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.