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ELCPartially AllowedKilgoris ELC Appeal filed 24th July 2019 (arising from KILGORIS PMC ELC NO. 25 OF 2018)· [2021] KEELC 1524 (KLR)

Philip Kingeno Marindany v Kibilo Kiptonui Mateget [2021] KEELC 1524 (KLR)

Environment and Land Court
18 October 2021
2,154 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 Kilgoris overturned an exhumation order, ruling that court orders cannot be enforced against someone never properly served with them.

What this practically means

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Executive summary

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This first appeal, heard at the Environment and Land Court in Kilgoris, challenged a ruling of the Kilgoris Principal Magistrate's Court (ELC No. 25 of 2018) delivered on 11th July 2019, which ordered the Appellant to exhume the remains of his son, the deceased 2nd Respondent, from the disputed property TRANS-MARA/OLOSAKWANA “B”/411 within 60 days, failing which the Plaintiff would do so, with police security provided. The dispute arises from a suit over land registered in the name of the Respondent's deceased father, filed in 2011. After the deceased 2nd Defendant died in December 2018, the Appellant buried him on the disputed land on 11th December 2018, a day after restraining orders issued but before service, which was delegated to the Area Chief and effected only on 12th December 2018. The appellate court found no affidavit of service by an authorized process server on the trial file and held that the Appellant was not in disobedience of the orders, since service of significant orders must be effected by a legally authorized person. On exhumation, the court found the burial indisputable but declined to order exhumation at the preliminary stage, deferring the question to the hearing and determination of the main suit, with liberty to the Respondent to amend pleadings to add an exhumation prayer. The court upheld the Trial Court's limited use of the Land Registrar's Report for identifying the burial site and found no error in determining only the prayers sought. The appeal was allowed on grounds 1, 2 and 3: the ruling of 11th July 2019 was set aside, the main suit was directed to be heard on priority basis within six months, and each party was ordered to bear its own costs of the appeal.

Key legal issues

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01

Proper service of the restraining orders

Holding

No Affidavit of Service by an authorized process server existed on the trial file; the Area Chief served the order only after the burial, so the Appellant was not in disobedience

Reasoning

The court perused the original trial file and found no affidavit of service by an authorized process server. The allegation that the Area Chief served the order on 12th December 2018, after the 11th December burial, was unchallenged by the Respondent. Service of significant orders must be by a legally authorized person since they affect parties' rights, and without proper service there can be no finding of disobedience.

p. 3
02

Exhumation of the deceased

Holding

No exhumation order at this stage; the question of exhumation awaits hearing and determination of the main suit

Reasoning

It was undisputed the deceased was buried on the disputed property registered in the Respondent's name, but the ownership dispute must be canvassed at a proper hearing. Since the appellant buried without proper service of the restraint order, the court declined exhumation at the preliminary stage, leaving the Respondent free to amend pleadings to add an exhumation prayer if successful in the lower court.

p. 3
03

Reliance on the Land Registrar's Report

Holding

The report was strictly for identifying where the deceased was buried, and the Trial Court committed no error in relying on it

Reasoning

The court reviewed the proceedings and the report and found its purpose was limited to identifying the property on which the deceased was interred. Its identification of the burial on the property registered in the Respondent's name was a fact the lower court could not ignore, so grounds 5 failed.

p. 4
04

Determination at preliminary stage

Holding

The Trial Court merely determined the prayers sought in the application and did not err

Reasoning

The impugned ruling addressed only the exhumation prayer in the application before it, which was within the court's duty. This ground therefore lacked merit, though the appellate court nevertheless set the ruling aside on the service and exhumation grounds.

p. 4

Legal principles established

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  • Service of court orders affecting parties' rights must be effected by a legally authorized person, and disobedience cannot be found absent proper service
  • A party absent proper service cannot be held to be in contempt/disobedience of the order

Court orders

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  1. 1.The Trial Court's Ruling dated 11th July 2019 be and is hereby set-aside forthwith
  2. 2.The proceedings known as KILGORIS PMC ELC NO. 25 OF 2018 be heard on a priority basis and within Six (6) Months from the date of this Ruling
  3. 3.Each party to bear its own costs of this Appeal
On appeal from
Kilgoris Principal Magistrate's Court (ELC)
KILGORIS PMC ELC NO. 25 OF 2018
Jurisdiction invoked
First appellate jurisdiction over the ruling of the Kilgoris Principal Magistrate's Court in ELC No. 25 of 2018

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, "Philip Kingeno Marindany v Kibilo Kiptonui Mateget [2021] KEELC 1524 (KLR)", Case Analysis (2021). Kilgoris ELC Appeal filed 24th July 2019 (arising from KILGORIS PMC ELC NO. 25 OF 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1524/eng@2021-10-18

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