Philip Kingeno Marindany v Kibilo Kiptonui Mateget [2021] KEELC 1524 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Proper service of the restraining orders
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
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.
Exhumation of the deceased
No exhumation order at this stage; the question of exhumation awaits hearing and determination of the main suit
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.
Reliance on the Land Registrar's Report
The report was strictly for identifying where the deceased was buried, and the Trial Court committed no error in relying on it
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.
Determination at preliminary stage
The Trial Court merely determined the prayers sought in the application and did not err
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.
Legal principles established
#- 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
#- 1.The Trial Court's Ruling dated 11th July 2019 be and is hereby set-aside forthwith
- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.