Getama & another v Maroa (Suing as the legal representative of the Estate of Babere Ikwabe) (Environment and Land Appeal E029 of 2025) [2025] KEELC 7537 (KLR)
The bottom line
#A Kenyan court allowed a family to bury their relative on disputed land after finding the person who blocked the burial misled the court about who owned it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal is merited
- 2.Who to bear the costs of the appeal
Key legal issues
#Whether the trial court properly found a prima facie case
The trial court's finding of a prima facie case was plainly wrong: the Grant Ad Litem was undated and unsigned, did not refer to the suit land, and the Respondent's own pleadings showed the deceased Ketama Roswe was the registered owner, not Babere Ikwabe Nyamosi
The court perused the Grant Ad Litem and found it undated, unsigned and not referring to the suit land. The Respondent pleaded the land was registered in the name of the deceased Ketama Roswe, contradicting his claim that Babere Ikwabe was registered owner. He also shifted from claiming the entire parcel to only 8 of 20 acres, showing he misled the court and lacked clean hands for equitable relief.
Whether irreparable harm was demonstrated
No irreparable harm not compensable by damages was shown; the trial court's reliance on community attachment to graves was not grounded in any submission or deposition and was a wrong principle
The Respondent's only assertion was that burial would occasion 'untold expense and cost', which the court found ambiguous and misleading, not demonstrating irreparable harm. The trial court sua sponte imported custom and speculated the appellants would use a grave to claim land despite their father holding title; the appellate court found this went beyond the court's neutral position and set aside that finding.
Standard for interference with discretionary decisions on first appeal
An appellate court interferes with a trial court's discretionary decision only where the discretion was exercised injudiciously, on wrong principles, or the decision is plainly wrong
Relying on Mbogo v Shah, Supermarine Handling Services, Farah Awad Gullet, Edward Sargent and its own decision in Agola v Ngodhe, the court restated the settled principle that a first appellate court must be cautious in disturbing discretionary rulings and may only interfere where the trial court misdirected itself or was clearly wrong.
Occupation and balance of convenience
The trial court failed to satisfy itself on occupation; the Chief's evidence showed the appellants occupied the specific portion since 2006 and had dug a grave there, so the balance of convenience did not favour the Respondent
The Chief of Wangera Location testified the appellants' family had long resided on the land and dug a grave there, while the Respondent never resided on it and claimed only 8 of 20 acres without showing the burial site fell within those 8 acres. The validity of the underlying 2006 Tribunal decree also remained undetermined, including under the Limitation of Actions Act.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by a trial court unless the discretion was exercised injudiciously, on wrong principles, or the decision is plainly wrong
- A party seeking the equitable remedy of an injunction must come to court with clean hands
- An applicant for an injunction must sequentially satisfy all three Giella principles as separate, distinct and logical hurdles
Court orders
#- 1.The appeal is allowed in entirety
- 2.The orders of injunction issued on 2nd September 2025 are set aside with costs to the Appellants/Defendants in the lower court
- 3.The Respondent shall pay the costs of the mortuary expenses of the deceased from 25th September 2025, either forthwith or to be included in the bill of costs on this appeal, to be taxed or agreed
- 4.The Appellants are free to bury forthwith the deceased within the compound where they had already dug a grave
- 5.The OCS, Ntimaru Police Station is directed to ensure compliance of these orders and no interference
- 6.The parties are directed to move the trial court with speed to have the matter concluded before the period contemplated regarding the earlier determined matter(s) over the suit land ends
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (trial court, Kehancha/Ntimaru area)
- not stated in the judgment as provided
- Jurisdiction invoked
- First appeal to the Environment and Land Court from the trial magistrate's ruling on an interlocutory injunction application
Relief refused
#Respondent's application for interlocutory injunction (as upheld by the trial court)
The court found the Respondent misled the court on ownership, had no prima facie case, and showed no irreparable harm not compensable by damages
Costs
The Appellants shall have the costs of the appeal; the injunction orders set aside with costs to the Appellants/Defendants in the lower court; the Respondent to pay the costs of the mortuary expenses from 25th September 2025 either forthwith or in the bill of costs on the appeal, to be taxed or agreed.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially.
He should have come to the court with clean hands: his are soiled with lies from the beginning.
The orders of injunction issued on 2nd September 2025 are hereby set aside with costs to the Appellants herein/ or Defendants in the lower court. However, the appellants are free to bury forthwith the deceased within the compound where they had already dug a grave to inter the remains.
Thus, in my view the Respondent was not a candid person who would be entitled to the equitable remedy of injunction. He misled the court to grant it, in the first instance.
Further, for the court to rely on its imagination that the appellants would use a grave to claim the portion of land when their deceased father had title to it is, to say the least, a stretch too far to be correct.
Issues in the judgment
#The judgment's case number and neutral citation are not stated anywhere in the text provided
Internal inconsistency on the date of the ruling appealed from - the court variously gives 2nd September 2025 and 2nd September 2024
The party names in the case title are not fully stated; appellants are referred to only as Defendants/Appellants, with the Respondent being Peter Maroa Ikwabe
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Getama & another v Maroa (Suing as the legal representative of the Estate of Babere Ikwabe) (Environment and Land Appeal E029 of 2025) [2025] KEELC 7537 (KLR)", Case Analysis (2025). not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7537/eng@2025-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.