Cherono (Suing for & on behalf of the Late Cherono Komen) v Mulamba (Suing for & on behalf of the Late Esther Osama Macharia) (Environment and Land Case 157 of 2013) [2025] KEELC 6314 (KLR)
The bottom line
#Kenya's Eldoret Environment and Land Court found a man in contempt for burying a relative on land covered by a court injunction and ordered the body exhumed.
What this practically means
#Executive summary
#Key legal issues
#Whether the contempt application was properly lodged against Musa Mulamba though he was not a party to the principal suit
The application was against the right party; he obtained a Limited Grant Ad Litem before responding, and the application sought exhumation from him personally
The court found that although Musa Mulamba was not a party to the original suit, he annexed a Limited Grant of Letters of Administration Ad Litem appointing him to prosecute and defend the suit, regularising his position before filing his response. Further, Order 24 Rule 4 does not place the substitution obligation solely on the plaintiff. Since the application sought exhumation of a body he buried, it was directed at him personally, not the deceased.
Whether the respondent was in contempt of the interim injunction of 12 June 2025
Yes - the terms were clear, service was proved, and disobedience was deliberate
The court applied the Samuel M.N. Mweru elements. The injunction was clear and binding; a court process server proved service on 12.06.2025 at 6.20pm, corroborated by the respondent's attendance in court later despite denying service. He was buried two days after service, offered no explanation, and a discrepancy existed in the burial date he gave. Contempt was proved beyond reasonable doubt.
Whether the body should be exhumed
Yes - the burial was unlawful and the exhumation was necessary to protect the property
Ownership of the suit property had already been declared to belong to Cherono Komen in the 2014 judgment and eviction order, which the respondent did not dispute. The burial was without consent and in violation of the injunction and the earlier judgment. The court found exhumation the only means of protecting the property from further interference by the respondent or the deceased's family.
Legal principles established
#- To succeed in civil contempt the applicant must prove the terms of the order, knowledge of those terms by the respondent, and failure to comply; willfulness and bad faith are then inferred unless rebutted
- The burden of proving contempt is beyond reasonable doubt
Court orders
#- 1.The Defendant/Respondent be and is hereby cited for contempt of the orders issued on 12th June 2025 and is ordered to appear in person before the court on a date to be assigned to show cause why he should not be committed to civil jail
- 2.The Defendant/Respondent is ordered to exhume the body of Esther Osama Macharia interred on 14/6/2025 on the Plaintiff/Applicant's land Ngeria/Kesses Block 5(Bayete)/18
- 3.The County Public Health Officer, Uasin Gishu is directed to ensure compliance with public health protocols during the exhumation
- 4.The O.C.S Kiambaa Police Station is directed to oversee the exhumation
- 5.The applicant shall have the costs of this application
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over contempt of its orders and disputes relating to the suit land; not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherono (Suing for & on behalf of the Late Cherono Komen) v Mulamba (Suing for & on behalf of the Late Esther Osama Macharia) (Environment and Land Case 157 of 2013) [2025] KEELC 6314 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6314/eng@2025-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.