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ELCDismissedELC Appeal arising from Kitale CMCC No. 438 of 2019; Notice of Motion dated 16/3/2021· [2021] KEELC 3374 (KLR)

Edward Makokha Simiyu & 2 others v Isaac Macheso Mabonga & another [2021] KEELC 3374 (KLR)

Environment and Land Court
11 May 2021
MNMwangi Njoroge
1,024 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 Kitale refused to pause a ruling blocking a burial on disputed land, confirming that burial does not create land ownership.

What this practically means

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Executive summary

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This was a notice of motion dated 16/3/2021 filed by the appellants in an appeal from Kitale CMCC No. 438 of 2019, a burial dispute in which the subordinate court had on 23/3/2021 barred the appellants from interring the remains of Esther Nasimiyu Simiyu (deceased) on land parcel Saboti/Sikhendu Block 8(Weonia)/41 and from erecting structures thereon. The appellants, who reside on the suit land and complained of harassment by the respondents, sought a temporary and then confirmed stay of the judgment and decree pending appeal, invoking Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B and 63(e) of the Civil Procedure Act, the Environment and Land Court Act and Article 159(2) of the Constitution. The respondents, through a replying affidavit sworn by Isaac Macheso Mabonga, opposed the application, contending that the decree did not vest ownership rights in them, that a separate ownership suit (Kitale CMCC Land Case No. 52 of 2019) was pending, and that the extracted decree was incomplete. Mwangi Njoroge J examined the decree itself and found it merely restrained interment; ownership remained live in the pending suit. He held that a stay would leave the parties without direction on burial and that the application was premised on a total misapprehension of the judgment's effect. Applying Paul Njenga v Leah Wanjiku Njoroge and Victoria Distributors v Joseph Abwao Nyawir, he reaffirmed that burial on disputed land confers no title. The application was dismissed with costs to the respondents, the parties to await the substantive appeal.

Key legal issues

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01

Whether stay of the lower court judgment should issue pending appeal

Holding

Stay was refused because the decree appealed against did not determine ownership rights over the suit land and the applicants misapprehended its effect

Reasoning

The court examined the extracted decree and found it merely restrained the appellants from interring the remains of the deceased and erecting structures on the suit parcel. Ownership was the subject of a separate pending suit, Kitale CMCC Land Case No. 52 of 2019. Granting a stay would leave the parties without direction on burial. The proper course was to await the substantive appeal.

p. 2
02

Whether burial on disputed land confers any right over the land

Holding

Burial on disputed land does not confer title or ownership; the question of any right to bury on the premises remains to be determined

Reasoning

Relying on Paul Njenga v Leah Wanjiku Njoroge and Victoria Distributors v Joseph Abwao Nyawir, the court held that interment on land registered in another person's name poses no legal threat to ownership and confers no title, and any right to bury must be determined in the substantive appeal.

p. 2

Legal principles established

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  • A burial on a disputed land does not confer title or ownership to that land
  • A stay of a burial decree over land whose ownership is in dispute in a separate pending suit would leave the parties without direction; the appeal court must determine the burial issue on the appeal itself

Court orders

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  1. 1.The application dated 16/3/2021 (referred to in the disposition as dated 26th March 2021) is dismissed with costs to the respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 63(e)
  • Civil Procedure RulesOrder 42 Rule 6; Order 51 Rule 1
  • Environment and Land Court Act No. 19 of 2011Sections 3 and 13(1)
  • Constitution of Kenya, 2010Article 159(2)

Cases cited (3)

  • Paul Njenga v Leah Wanjiku Njoroge
    [2005] eKLR
  • Victoria Distributors v Joseph Abwao Nyawir
    [2015] eKLR
  • Dinah Caren Ondiek Akinyi -vs- Leukadia Ajwang Ondero & Another
    null
On appeal from
Chief Magistrate's Court, Kitale
Kitale CMCC No. 438 of 2019
Jurisdiction invoked
Sections 1A, 1B & 63(e) of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 3 and 13(1) of the Environment and Land Court Act No. 19 of 2011 and Article 159(2) of the Constitution

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, "Edward Makokha Simiyu & 2 others v Isaac Macheso Mabonga & another [2021] KEELC 3374 (KLR)", Case Analysis (2021). ELC Appeal arising from Kitale CMCC No. 438 of 2019; Notice of Motion dated 16/3/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3374/eng@2021-05-11

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