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ELCPartially AllowedNot stated in the judgment text provided· [2025] KEELC 3147 (KLR)

Agumba & another v Juma (Environment and Land Appeal E041 of 2022) [2025] KEELC 3147 (KLR)

Environment and Land Court
3 April 2025
SOS. Okong'o
1,598 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Respondent sued the Appellants in Winam CMC ELC No. E022 of 2022, claiming he was the registered owner of Kisumu/Kadero Got Nyabondo/3037 and that on 4th August 2022 the Appellants forcibly interred the body of Millicent Onyango Obudho, a stranger to him, after he declined permission. He sought a permanent injunction and costs. The Appellants denied involvement, asserting the deceased was a stranger to them and that they had no interest in the land or the burial. The trial court found the Respondent was the registered owner, held the burial without his permission was illegal, authorised exhumation, and awarded the Respondent costs. On appeal, the Appellants argued the magistrate had granted a relief (exhumation) not sought in the plaint. The first appellate court, guided by the duty to re-evaluate evidence, agreed the exhumation order was unpleaded and should have followed an amendment, but held the Appellants suffered no prejudice given their own pleadings disclaiming any interest in the deceased or the burial and their trial statement of no objection to exhumation. Invoking Re Matheson (deceased) and Hellen Cherono Kimurgor v. Esther Chelagat Kosgei, the court declined to disturb the exhumation, holding the body should rest undisturbed. However, finding insufficient evidence that the Appellants buried the body, it varied the judgment by setting aside the costs order against them, substituting that each party bear their own costs of the suit, and ordered each party to bear their own costs of the appeal. The appeal was allowed only in part.

Key legal issues

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01

Whether the lower court erred in granting an exhumation order not sought in the plaint

Holding

Yes, it erred, but the error caused no prejudice warranting appellate correction

Reasoning

The court agreed the exhumation order was not pleaded and could only have been granted after amendment of the plaint. However, the Appellants' own defence described the deceased as a stranger, denied involvement, and at trial raised no objection to exhumation. Having suffered no injustice, they could not complain of the unpleaded relief.

p. 2
02

Whether the exhumation order should stand

Holding

Yes; the body was to be left to rest where it was buried

Reasoning

Relying on Re Matheson (deceased) and Hellen Cherono Kimurgor v. Esther Chelagat Kosgei, the court held that courts must keep faith with the dead and respect the desire that bodies remain undisturbed after burial. Disturbing the status quo would not be in the best interest of the deceased.

p. 3
03

Whether the costs order against the Appellants was justified

Holding

No; there was insufficient evidence that the Appellants buried the body

Reasoning

The burden of proof lay on the Respondent to show the Appellants interred the remains. The court was not satisfied there was sufficient evidence for such a finding, and since no fault was found against the Appellants, condemning them to pay costs was prejudicial and wrong.

p. 3

Legal principles established

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  • A court should not grant a relief that was not sought in the pleadings, though the appellate court will not interfere unless prejudice or injustice is shown
  • The court's primary function in matters of burial is to keep faith with the dead and ensure remains remain undisturbed
  • Costs should not be imposed on a party found not to be at fault

Court orders

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  1. 1.Appeal allowed in part
  2. 2.Judgment of the lower court delivered on 9th November 2022 and the decree extracted therefrom varied by setting aside the order on costs made against the Appellants
  3. 3.Each party to bear his own costs of the suit
  4. 4.The other orders made in the judgment and the decree to remain undisturbed
  5. 5.Each party to bear his own costs of the appeal

Authorities

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Cases cited (7)

  • Verani t/a Kisumu Beach Resort v. Phoenix of East Africa Assurance Co. Ltd
    [2004] 2 KLR 269
  • Selle v. Associated Motor Boat Co. Ltd.
    [1968] E.A 123
  • Gitobu Imanyara & 2 others v. Attorney General
    [2016] eKLR
  • Peter v. Sunday Post Ltd.
    [1958] E.A 424
  • Makube v. Nyamuro
    [1983] KLR 403
  • In Re Matheson (deceased)
    [1958] 1 All ER 202
  • Hellen Cherono Kimurgor v. Esther Chelagat Kosgei
    [2008] eKLR
On appeal from
Chief Magistrate's Court at Winam
Winam CMC ELC No. E022 of 2022
Jurisdiction invoked
First appeal from the Chief Magistrate's Court (ELC appeal)

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, "Agumba & another v Juma (Environment and Land Appeal E041 of 2022) [2025] KEELC 3147 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3147/eng@2025-04-03

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