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ELCDismissedNotice of Motion Application dated 3rd October, 2023 (suit pending at Narok)· [2024] KEELC 1566 (KLR)

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)

Environment and Land Court
18 March 2024
3,919 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 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

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Executive summary

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This is a ruling on a Notice of Motion dated 3rd October 2023 by the plaintiff/applicant, holder of Letters of Administration Ad Litem for the estate of the late Solomon Leperes Kasura, seeking an interlocutory injunction to restrain the 2nd defendant/respondent from burying the remains of the deceased 1st defendant, Magdalene Mwikali Kioko, on the suit property (formerly CisMara/Enabelibel-Enengetia/77, now subdivided into 1610-1616) pending hearing of the main suit. The applicant contended that the deceased fraudulently acquired the property from his late father, that burial would cause irreparable loss through degrading waste and the emotional distress of possible exhumation, and that the balance of convenience favoured him. The respondent opposed, asserting the deceased had lived on and developed the land, that he had already buried his son and father there without objection, and that no proprietary rights exist in a dead body so no irreparable loss would arise. Applying the Giella v Cassman Brown principles as restated in Nguruman Limited v Jan Bonde Nielsen, the court held that the applicant had not established a prima facie case: the allegations of fraud and misrepresentation were unproved and best left for trial, and no loss or expense from the burial was demonstrated, any exhumation-related distress falling on the respondent. Having failed at the first sequential hurdle, the other requirements fell away. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the plaintiff/applicant established a prima facie case warranting an injunction restraining burial of the deceased 1st defendant on the suit property

Holding

No prima facie case was established; allegations of fraud and misrepresentation in acquisition of the suit property were unproved and best left for trial

Reasoning

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.

p. 7
02

Whether the plaintiff would suffer irreparable loss not compensable by damages if the burial proceeds

Holding

No loss or expense was demonstrated; the risk of emotional distress from exhumation would, if anything, fall on the respondent, not the applicant

Reasoning

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.

p. 7
03

Whether the balance of convenience favours the applicant

Holding

Not reached/failed; the applicant having failed to establish a prima facie case, the balance of convenience need not be considered

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Notice of Motion Application dated 3rd October, 2023 is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 40
  • Civil Procedure ActSections 1A & 1B, 3, 3A & 63 (c) & (e)
  • Civil Procedure RulesOrder 40 Rule 3 (1), Rule 4 (1); Order 51 Rule 1, 3 and 13 (2)
  • Law of Succession ActSection 29 (b)
  • Evidence ActSection 65 (8) as read with Sections 106 and 106B

Cases cited (16)

  • Mrao Limited v First American Bank of Kenya Limited & 2 Others
    [2003] eKLR
  • Virginia Edith Wambui Otieno v Ochieng’ Ougo & Another
    [1987] KLR 371
  • Dinah Odhiambo Oyier v Hellen Achieng & 3 Others
    High Court Civil Appeal No. 14 of 2017 [2017] eKLR
  • Republic v Minister for Transport & Communication & 5 Others Ex Parte Waa Ship Garbage Collector & 15 Others
    Mombasa HCMCA No. 617 of 2003 [2006] 1 KLR (E&L) 563
  • Munyu Maina v Gathiha Maina
    [2013] eKLR
  • M’imanene M’rutere v Lewis Kirimi & 2 Others
    Civil Appeal No. 20 of 2018 [2018] eKLR
  • Joyce Omondi Oleng & Another v Sueflan Radal
    [2012] eKLR
  • Lawi Kigen Kiplagat v Japheth Amenya Ratemo
    [2021] eKLR
  • Joseph Siro Mosioma v Housing Finance Company of Kenya Limited & 3 Others
    [2008] eKLR
  • Chebii Kipkoech v Barnabas Tuitoek Bargoria & Another
    [2019] eKLR
  • Paul Gitonga Wanjau v Gathuthis Tea Factory Company Limited & 2 Others
    [2016] eKLR
  • Re Burial of Musa Magodo Keya (deceased)
    [2021] eKLR
  • Samuel Onindo Wambui v COO & Another
    Kisumu Civil App. No. 13 of 2011 [2015] eKLR
  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Kenya Commercial Finance Co. Ltd v Afraha Education Society
    [2001] Vol. 1 EA 86
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

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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, "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.