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ELCAllowedNot stated in the judgment (Notice of Motion dated 21st June 2021 in the pending suit)· [2022] KEELC 2131 (KLR)

John Bosco Kisome & 8 others v Gabriel Mulemba [2022] KEELC 2131 (KLR)

Environment and Land Court
18 January 2022
2,491 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court blocked a family from burying a relative on farmland, confirming that a registered title holder's rights trump pending adverse possession claims.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) delivered virtually on 18th January 2022 on the Defendant's Notice of Motion dated 21st June 2021. The Defendant, Gabriel Mulemba, the registered proprietor of Matuu/Ikaatini/676 in Machakos County, sought temporary injunctions restraining the 1st, 2nd and 4th to 9th Plaintiffs from entering the suit property, digging any grave site, burying the remains of William Mulemba Mutisya (who died on 18th June 2021) and interfering with the property, with compliance to be overseen by the OCS Ekalakala Police Station. The Plaintiffs, who claim the suit property by adverse possession, opposed the application, asserting the deceased had resided on the land since 1968 and buried a son there in 1985, and that the Defendant's title was fraudulently obtained. The court framed a single issue: whether a temporary injunction should issue. Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, and relying on sections 24 and 26 of the Land Registration Act, Barbara Jebet Moi v Emily Chesang and Nguruman Ltd v Jan Bonde Nielsen, the court held the Defendant, as undisputed registered proprietor with an uncancelled title, had established a prima facie case; the harm of an unauthorized burial was actual and not compensable in damages; and the balance of convenience favoured him. The court noted an earlier ruling of 12th February 2021 by Justice Angote restraining the Plaintiffs from interfering with the property. The application was allowed in full, with costs to the Defendant.

Key legal issues

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01

Whether the Defendant established a prima facie case with a probability of success

Holding

Yes. The Defendant is the undisputed registered proprietor with documents of title; his title has not been cancelled, and the Land Adjudication Committee confirmed his mother was proprietor. His registered ownership confers a prima facie case under the Giella and Mrao tests.

Reasoning

The court applied Giella v Cassman Brown and the Mrao definition of a prima facie case. It found it not in dispute that the Defendant is the registered proprietor holding title. Although the Plaintiffs claim adverse possession, their claim remains pending and unproved; the title remains intact and protected under sections 24 and 26 of the Land Registration Act. The court associated itself with Barbara Jebet Moi v Emily Chesang, where an identical burial-injunction application succeeded because the registered proprietor must be accorded full rights under the Land Registration Act and Article 40.

p. 3
02

Whether the Defendant will suffer irreparable harm not compensable by damages

Holding

Yes. The burial of the deceased's remains on the suit property would harm the Defendant's interest and lower the property's value; the injury is not speculative.

Reasoning

Applying Nguruman Ltd v Jan Bonde Nielsen, the court noted the applicant must show actual, substantial and demonstrable injury beyond an unfounded fear. The Defendant demonstrated the harm he would suffer if the Plaintiffs buried the remains of William Mulemba Mutisya on the suit property, which he farms for his livelihood. Damages would not adequately compensate such harm.

p. 3
03

Where the balance of convenience lies

Holding

The balance of convenience tilts in favour of the Defendant, whose rights have been infringed upon by the Plaintiffs.

Reasoning

The court assessed the evidence of both parties and found the balance favoured the registered proprietor, particularly given the Plaintiffs' admission that they seek to inter the deceased's remains despite an earlier ruling by Justice Angote dated 12th February 2021 restraining them from interfering with the suit property pending the outcome of the suit.

p. 3

Legal principles established

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  • A certificate of title is prima facie evidence that the named proprietor is the absolute and indefeasible owner, challengeable only on fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition (Section 26, Land Registration Act).
  • A registered proprietor whose title stands uncancelled establishes a prima facie case and protection of sections 24, 25 and 26 of the Land Registration Act and Article 40 of the Constitution, not to be watered down by adverse claims pending trial.
  • Irreparable harm must be actual, substantial and demonstrable and not adequately compensable by damages; speculative injury does not suffice (Nguruman principle).

Court orders

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  1. 1.Pending the hearing and determination of the suit, a temporary injunction issued restraining the 1st, 2nd, 4th to 9th Plaintiffs/Respondents, their agents, family members, relatives, employees and/or servants and the legal representatives of the estate of William Mulemba Mutisya, if any, from entering, digging any grave site, burying the remains of the late William Mulemba Mutisya and/or interfering with the suit property known as Matuu/Ikaatini/676
  2. 2.The OCS Ekalakala Police Station in Machakos County to ensure compliance with the orders
  3. 3.Costs of the application awarded to the Defendant

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Land Registration ActSection 24(a)
  • Constitution of KenyaArticle 40

Cases cited (12)

  • Mary Njeri Mbugua V Alice Muthoni
    (2018) eKLR
  • Lawi Kigeni Kiplagat V Japhet Amenya Ratemo
    (2021) eKLR
  • Kessiah Wanjiku Kuria V Joseph Ndirangu Mwangi
    (2016) eKLR
  • Zio Ngoma & 4 Others V Kea Ngoma
    (2014) eKLR
  • Anton Homesa Limited & Another V Davis Nathan Chelogoi
    (2018) eKLR
  • Barbara Jebet Moi V Emily Chesang
    (2017) eKLR
  • Giella V Cassman Brown & Company
    (1973) EA 358
  • Ali Mwaduua V Masla Mukadla
    (2019) eKLR
  • Mrao Ltd Vs First American Bank of Kenya & 2 Others
    (2003) KLR 125
  • Ahmed Ibrahim Suleiman and Another vs. Noor Khamisi Surur
    (2013) eKLR
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012
  • Milimani CMCC No. 5126 of 2005 Gabriel Mulemba V Joseph Mutisya & 5 Others
    CMCC No. 5126 of 2005
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit land Matuu/Ikaatini/676 in Machakos County; specific statutory basis not stated in the extract

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, "John Bosco Kisome & 8 others v Gabriel Mulemba [2022] KEELC 2131 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 21st June 2021 in the pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2131/eng@2022-01-18

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