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ELCPartially AllowedNotice of Motion dated 3rd May 2021 (arising from ELC 588 of 2014)· [2022] KEELC 597 (KLR)
John Thuo Kiragu (suing on behalf of Jonathan Kiambati, David Chege & Mercy Emily Wanjiru as Donors) v Stephen Chiira Karanja & 5 others [2022] KEELC 597 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#A Kenyan landowner won a court order forcing relatives to exhume a body buried on his land in defiance of earlier court orders.
What this practically means
#Executive summary
#This was a ruling on a Notice of Motion dated 3rd May 2021 by John Thuo Kiragu, the Applicant, under Sections 1A and 3A of the Civil Procedure Act, Section 26 of the Land Registration Act, Section 146 of the Public Health Act and Order 51 Rule 1 of the Civil Procedure Rules. The Applicant sought orders compelling the 1st to 3rd Respondents to remove and/or exhume the remains of Teresia Gathoni (deceased), which had been interred on land parcel Limuru/Kamirithu/380 belonging to the Applicants, and directing the 4th and 5th Respondents to issue an exhumation permit, with security and supervision during the exercise. The application was opposed by a replying affidavit of the 1st Respondent, Stephen Chiira Karanja. The application was canvassed by written submissions pursuant to consent directions of 29th July 2021; the Respondents did not file submissions, while the Applicant did. The court observed that judgment in ELC 588 of 2014 was in favour of the Applicant, including orders barring the 1st to 3rd Respondents from trespassing on the suit property, which were disobeyed; the 1st Respondent raised no new issues, only matters already raised in that suit. Holding the application merited, the court allowed it: the 1st to 3rd Respondents were ordered to exhume and remove the remains within thirty (30) days; in default the Applicant could remove them to the nearest mortuary; the 4th and 5th Respondents were directed to issue an exhumation permit; the OCS Tigoni Police Station, the area Chief and/or assistant Chief and the Public Health Officer Kiambu County were to provide security and supervise; and each party was to bear its own costs.
Key legal issues
#01
Whether the notice of motion seeking exhumation of remains interred on the applicants' land was merited
Holding
The application was allowed; the 1st to 3rd Respondents were ordered to exhume and remove the remains within 30 days, failing which the applicant could do so; exhumation permit to issue and security to be provided
Reasoning
The court noted that judgment in ELC 588 of 2014 was in favour of the Applicant, including orders barring the 1st to 3rd Respondents from trespassing on the suit property. The 1st Respondent raised no new issues in opposition, only matters already determined in that suit. Given the prior judgment in the Applicant's favour, the court found merit in the application and allowed it in the terms set out in the final orders.
p. 2
Legal principles established
#- Interment of human remains on land in defiance of subsisting court orders restricting access to the land is unlawful and may be remedied by an order for exhumation
Court orders
#- 1.The 1st, 2nd and 3rd Respondents to remove and/or exhume the remains of Teresia Gathoni (Deceased) unlawfully interred on land Parcel Number Limuru/Kamirithu/380 within thirty (30) days from the date of the Judgment
- 2.In default of order (a), the Plaintiff/Applicant at liberty to remove and/or exhume the said remains and take them to the nearest mortuary
- 3.The 4th and 5th Respondents directed to issue an exhumation permit for exhumation of the remains of Teresia Gathoni (Deceased) from Land Parcel Number Limuru/Kamirithu/380
- 4.The OCS Tigoni Police Station, the area Chief and/or assistant Chief and the Public Health Officer Kiambu County to provide security and supervise the exhumation exercise
- 5.Each party to bear own costs
- Jurisdiction invoked
- Sections 1A and 3A of the Civil Procedure Act Cap 21; Section 26 of the Land Registration Act No. 3 of 2012; Section 146 of the Public Health Act Cap 242; Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Thuo Kiragu (suing on behalf of Jonathan Kiambati, David Chege & Mercy Emily Wanjiru as Donors) v Stephen Chiira Karanja & 5 others [2022] KEELC 597 (KLR)", Case Analysis (2022). Notice of Motion dated 3rd May 2021 (arising from ELC 588 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/597/eng@2022-03-24
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