Oyunge Barnabus Ratemo &3 others v Charles Oteki Rioba & another [2022] KEELC 386 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether to restrain the burial of the 2nd Defendant's husband on the suit land pending trial
The injunction was declined; the deceased's wish to be buried on the 3 Acres he bought and developed on the suit land, where he had lived since 1992 and where a son was buried in 1993 without objection, prevails under custom and the settled practice on burial wishes
The court found the deceased had disposed of his inherited land at Ogembo and had no other home, and had loudly expressed his burial wishes by acquiring and developing the portion on the suit land. Abagusii custom pre-determines burial sites and the court declined to disturb that entrenched practice without good reason. The applicants, whose estate had been distributed by a confirmed grant, could not object to burial on a portion bought from a beneficiary whose entitlement was known.
Whether the burial dispute determines ownership of the suit land
No; the court expressly disclaimed determining ownership rights, which must await full trial
The court warned that allowing the burial should not be seen as legitimising anyone's ownership, since the parameters for determining land ownership differ from those for a burial dispute. The decision on burial was confined to the interlocutory application and would not bind the parties on title, which awaits appropriate proceedings at full trial.
Status of the estate following the certificate of confirmation of grant
Upon confirmation the estate was distributed and effectively wound up; the administrators could not invoke protection of the estate having failed their duty under Section 83(g) to complete administration
The certificate of confirmation issued on 9 July 2020 allocated entitlements, with Daniel Ratemo holding 20 Acres in trust for siblings, one of whom sold 3 Acres to the 2nd Defendant. Nearly two years after confirmation the administrators had not completed the administration or produced accounts, so they could not convincingly claim to be protecting the estate. Issues of intermeddling, if any, belonged in the Succession Court.
Legal principles established
#- The wishes of a deceased person as to place of burial must be followed and implemented as long as they are not inconsistent with general law or policy
- A certificate of confirmation of grant distributes the estate, conferring ownership rights on beneficiaries, and where there is no continuing trust the estate is wound up
- Determining a burial dispute does not confer or determine ownership rights over the land on which burial is permitted
Court orders
#- 1.The prayer for an injunction restraining the 2nd Defendant/Respondent from entering, burying the body of her husband, developing and/or constructing thereon, cultivating, tilling and/or committing acts of trespass on L.R. NO. 9346/2 is declined
- 2.The Officer Commanding Matutu Police Station to provide security to ensure the burial of the late Josiah Mokono Ombaye is conducted without any interference from any quarters
- 3.The Applicants shall pay all the mortuary bills incurred for the period beginning from 7/3/2022 to 24/3/2022 (inclusive)
- 4.The suit to be fast-tracked and heard expeditiously
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit land L.R. NO. 9346/2; interlocutory application within the pending suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oyunge Barnabus Ratemo &3 others v Charles Oteki Rioba & another [2022] KEELC 386 (KLR)", Case Analysis (2022). ELC No. 82 of 2021 (Formerly Environment and Land Court at Kisii Case No. 34 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/386/eng@2022-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.