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ELCDismissedEnvironment and Land Court Appeal (Kakamega) – appeal against Kakamega Chief Magistrate's Court MCELC No. 80 of 2019· [2022] KEELC 3839 (KLR)

Ingati & another v Amulyoto & another (Environment and Land Appeal E5 of 2021) [2022] KEELC 3839 (KLR)

Environment and Land Court
21 June 2022
3,948 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kakamega dismissed a family's appeal over where to bury their relative, confirming that land registration does not override other people's recognized interests.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kakamega against a judgment of the Chief Magistrate's Court (B Ochieng, CM) in MCELC No. 80 of 2019, a burial dispute with a land law core. The first respondent, registered proprietor of Isukha/Kambiri/1272, had sued to restrain the burial of Patrick Muteshi Ingati on that parcel; the second respondent, widow of the deceased's brother, joined as an interested party claiming interests in Isukha/Kambiri/983. The trial court permanently restrained burial on parcels 1272 and 983, permitted burial on parcel 984, and directed the appellants to bear mortuary costs. The appellants appealed, contending inter alia that the consent of June 19, 2019 resolved the suit, that the interested party could not obtain relief she had not sought by pleadings, and that burial on parcel 984 could not be directed when that parcel was not in litigation. The court (D O Ohungo, J) first confirmed its exclusive appellate jurisdiction under article 162(2)(b), sections 13 and 26(4) of the Environment and Land Court Act and section 9(a) of the Magistrates' Courts Act, since the dispute concerned proprietorship and use of land. On the merits, the court held the consent only resolved burial on parcel 1272 and did not conclude the suit; that the interested party's clearly articulated claim, although not pleaded by plaint or counterclaim, could ground relief under the overriding objective of substantive justice; and that her occupation and registered caution demonstrated sufficient interest in parcel 983 without determining her rights, which remain pending in High Court Succession Cause No. 87 of 1996. The order permitting burial on parcel 984 was construed as permissive only. Costs follow the event: the appellants bear mortuary fees. Appeal dismissed with costs to the respondents.

Key legal issues

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01

Appellate jurisdiction of the ELC over a burial dispute originating in the subordinate court's environment and land jurisdiction

Holding

The ELC had exclusive appellate jurisdiction because the dispute concerned proprietorship rights and use of land parcels.

Reasoning

The suit was filed in the subordinate court pursuant to its environment and land jurisdiction under section 9(a) of the Magistrates' Courts Act read with section 26 of the Environment and Land Court Act. The dispute concerned whether remains could be buried on particular parcels, engaging both proprietorship rights and use of land. Under section 26(4) of the Environment and Land Court Act the appeal lies properly and exclusively with the ELC.

p. 4
02

Status and entitlement to relief of an interested party

Holding

The second respondent was an interested party only, but the absence of a plaint or counterclaim did not bar the court granting her prayer to stop burial on Isukha/Kambiri/983, since her interest was known to all parties and fully litigated.

Reasoning

The court invoked article 159(2)(d) of the Constitution, section 3 of the Environment and Land Court Act and section 1A of the Civil Procedure Act, emphasising substantive justice over procedural technicalities. The appellants had consented to her joinder, knew of her claim from the onset, and never sought directions on her status, so they could not complain on appeal.

p. 6
03

Effect of the consent of June 19, 2019

Holding

The consent resolved only the dispute over burial on Isukha/Kambiri/1272 and did not conclude the case; it gave rise to a new dispute over burial on Isukha/Kambiri/983.

Reasoning

Prior to the consent, the dispute was whether the deceased could be buried on Isukha/Kambiri/1272, which the consent resolved. However, the second respondent's joinder raised a new question: whether she had a discernible interest in Isukha/Kambiri/983 sufficient to stop burial there. The consent did not extinguish that subsequent dispute.

p. 6
04

Whether the deceased's registration as proprietor of Isukha/Kambiri/983 precluded injunctive relief

Holding

Registration is not everything; the second respondent had shown sufficient interest in the parcel, including occupation confirmed by the Land Registrar's report and a caution claiming a beneficiary interest, so stopping burial there was proper without determining her rights.

Reasoning

The Land Registrar and District Surveyor confirmed the second respondent's occupation of parcel 983 and the deceased's occupation of parcel 984. An official search showed a caution registered in March 1998 claiming a beneficiary interest. The question was not ownership but whether she had a discernible interest; her rights are pending determination in the High Court succession cause.

p. 6
05

The order permitting burial on Isukha/Kambiri/984

Holding

That order was permissive, a suggestion, not compulsory; the appellants may bury the deceased elsewhere outside parcels 1272 and 983.

Reasoning

The court construed the impugned order literally, finding it was expressed in permissive terms imposing no compulsion. The appellants retain the freedom to choose any other burial site not prohibited by the orders, so the ground of appeal failed.

p. 7
06

Mortuary/preservation fees

Holding

The appellants, having lost the litigation and opted to keep the body in the mortuary, must bear the mortuary fees as costs follow the event.

Reasoning

The court noted no order completely stopped burial on all plots, so preservation resulted from the appellants' own litigation choices. Applying the principle that costs follow the event, the appellants, as losing parties who kept the body in the mortuary throughout, justly bear the mortuary fees.

p. 7

Legal principles established

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  • Registration as proprietor is not absolute; the law acknowledges the rights and interests of other parties in land.
  • A party joining proceedings as an interested party with a clearly articulated interest need not file a plaint or counterclaim before the court may grant relief consistent with that interest, given the imperative of substantive justice.
  • Parties cannot sit back and blame the court for failing to formulate directions; directions require an application and response.

Court orders

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  1. 1.Appeal dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010article 159(2)(d)
  • Constitution of Kenya, 2010article 162(2)(b)
  • Environment and Land Court Act, 2011section 3
  • Environment and Land Court Act, 2011section 13
  • Environment and Land Court Act, 2011section 26 and section 26(4)
  • Magistrates' Courts Act, 2015section 9(a)
  • Civil Procedure Actsection 1A
  • Land Registration Actsections 24, 25, 26 and 28

Cases cited (3)

  • Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
On appeal from
Chief Magistrate's Court (Environment and Land jurisdiction)
MCELC No. 80 of 2019
Jurisdiction invoked
Article 162(2)(b) of the Constitution, section 13 and section 26(4) of the Environment and Land Court Act, 2011, and section 9(a) of the Magistrates' Courts Act, 2015

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ingati & another v Amulyoto & another (Environment and Land Appeal E5 of 2021) [2022] KEELC 3839 (KLR)", Case Analysis (2022). Environment and Land Court Appeal (Kakamega) – appeal against Kakamega Chief Magistrate's Court MCELC No. 80 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3839/eng@2022-06-21

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