Kasura(Suing As The Son, Next Of Kin And Legal Representative Of The Late Solomon Leperes Kasura) v Kioko (Alias Magdalene Mwikali Kasura) & 2 others (Environment and Land Case E014 of 2021) [2024] KEELC 1566 (KLR)
The bottom line
#The Environment and Land Court in Narok refused to stop a burial on disputed land because the applicant could not prove his fraud claims at that early stage.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff/applicant established a prima facie case warranting an injunction restraining burial of the deceased 1st defendant on the suit property
No prima facie case was established; allegations of fraud and misrepresentation in acquisition of the suit property were unproved and best left for trial
The court held that ownership of the suit property is contested, but the alleged fraud/misrepresentation by the deceased 1st defendant had not been proved. These are matters for trial, which is still ongoing pending substitution of the deceased 1st defendant. Without a prima facie case, the other Giella v Cassman Brown requirements (irreparable injury and balance of convenience) need not be considered. The application was therefore dismissed.
Whether the plaintiff would suffer irreparable loss not compensable by damages if the burial proceeds
No loss or expense was demonstrated; the risk of emotional distress from exhumation would, if anything, fall on the respondent, not the applicant
The plaintiff contended that burial would cause degrading waste and emotional distress requiring exhumation if he succeeded. The court found that no loss or expense was demonstrated, that the respondent had already buried his son and father on the property without objection from the applicant or his siblings, and that any emotional distress from exhumation would be suffered by the respondent, not the applicant. Damages were thus not shown to be an inadequate remedy.
Whether the balance of convenience favours the applicant
Not reached/failed; the applicant having failed to establish a prima facie case, the balance of convenience need not be considered
Under the Nguruman restatement of Giella v Cassman Brown, the three conditions are separate, distinct and logical hurdles to be surmounted sequentially. Having failed at the first hurdle (prima facie case), the applicant could not 'leap-frog' to the balance of convenience. The court did not separately analyse where the balance lay, instead disposing of the application on the failure of the first requirement.
Legal principles established
#- An applicant for an interlocutory injunction must establish a prima facie case, demonstrate irreparable injury, and show that the balance of convenience is in his favour, as separate and sequential hurdles
- If damages recoverable in law are an adequate remedy, no interlocutory injunction should normally be granted, however strong the applicant's claim may appear
- If a prima facie case is not established, irreparable injury and balance of convenience need no consideration
- The acts of misrepresentation/fraud alleged against the deceased 1st defendant had not been proved and were matters best canvassed at trial
Court orders
#- 1.The Notice of Motion Application dated 3rd October, 2023 is dismissed
- 2.Costs to be in the cause
- Jurisdiction invoked
- Article 159 and Article 40 of the Constitution of Kenya; Sections 1A & 1B, 3, 3A & 63 (c) & (e) of the Civil Procedure Act; Orders 40 Rule 3 (1), Rule 4 (1), Order 51 Rule 1, 3 and 13 (2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kasura(Suing As The Son, Next Of Kin And Legal Representative Of The Late Solomon Leperes Kasura) v Kioko (Alias Magdalene Mwikali Kasura) & 2 others (Environment and Land Case E014 of 2021) [2024] KEELC 1566 (KLR)", Case Analysis (2024). Notice of Motion Application dated 3rd October, 2023 (suit pending at Narok). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1566/eng@2024-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.