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ELCPartially AllowedNotice of motion dated 20th November 2025 (suit property Kisa/Wambulishe/330 subdivided into 2032, 2033 and 2034)· [2025] KEELC 8291 (KLR)

Ojango & another v Akaka (Environment and Land Case E039 of 2025) [2025] KEELC 8291 (KLR)

Environment and Land Court
28 November 2025
1,386 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked a burial on privately titled land, confirming that a grave on property changes its character and counts as irreversible harm.

What this practically means

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Executive summary

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The plaintiffs, registered owners of parcel Kisa/Wambulishe/330 (subdivided into 2032, 2033 and 2034), moved the court by notice of motion dated 20th November 2025 seeking a temporary injunction to restrain the defendant from burying his deceased brother's remains on the suit property, from making further burial arrangements, and from interfering with the land, with the OCS Khwisero to assist in enforcement. The plaintiffs relied on their titles and on the dismissal on 19th November 2025 of the defendant's claim in Kakamega ELC 26 of 2024, which was found res judicata given a prior dismissal of similar trust and adverse possession claims in Kakamega ELC 66 of 2019. They argued burial would cause irreparable loss by creating emotive cultural claims and altering the land's character. The respondent opposed, asserting ancestral ownership, long occupation, existing family graves, and customary entitlement to bury his brother, and characterised the application as a backdoor eviction. Applying the Giella v Cassman Brown principles, the court found a prima facie case on the titles and prior rulings, found irreparable loss in that burial would change the character of the land, and held the balance of convenience favoured the title-holding plaintiffs. However, it declined to grant eviction at interlocutory stage. The court issued a temporary injunction against burial and further arrangements, restrained further development changing the land's character, directed the OCS Khwisero to assist, and awarded costs of the application to the plaintiffs.

Key legal issues

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01

Whether the applicants met the Giella v Cassman Brown threshold for a temporary injunction restraining burial on the suit property

Holding

Yes - prima facie case shown by titles and prior dismissal of the respondent's trust claim; irreparable loss shown because burial would alter the land's character; balance of convenience favours the title-holding applicants

Reasoning

The court took judicial notice of its own rulings in ELC 26 of 2024 and ELC 66 of 2019, in which the respondent's trust and adverse possession claims were dismissed. The applicants produced titles to the suit property. Interment of human remains carries deep cultural meaning and would change the character of the land, satisfying irreparable loss. Holding title and prior court findings tipped the balance of convenience in the applicants' favour.

p. 4
02

Whether the applicants could obtain eviction of the defendant's family at interlocutory stage

Holding

No - eviction can only issue upon final determination of the suit

Reasoning

Counsel confirmed the defendants reside on the suit property. An order restraining them from being on the land would amount to eviction, which is a final relief sought in the plaint and cannot be granted through an interlocutory application, however weak the defendant's counterclaim appears.

p. 4

Legal principles established

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  • The applicant for a temporary injunction must demonstrate a prima facie case with chances of success, irreparable loss, and that the balance of convenience tilts in their favour.
  • Burial of human remains on land changes the character of the property and can constitute irreparable loss.

Court orders

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  1. 1.A temporary injunction restraining the defendant, his agents, family members and any person acting on his behalf from burying the remains of his deceased brother or interring any other remains on the suit property or making further burial arrangements pending hearing and determination of this suit
  2. 2.The defendant's family, though not evicted, are restrained from further developing or doing anything on the suit property that may change its character pending hearing and determination of this suit
  3. 3.The OCS Khwisero Police Station to assist in effecting the orders
  4. 4.Costs of the application awarded to the plaintiffs/applicants
Jurisdiction invoked
Order 40 Rule 1 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, "Ojango & another v Akaka (Environment and Land Case E039 of 2025) [2025] KEELC 8291 (KLR)", Case Analysis (2025). Notice of motion dated 20th November 2025 (suit property Kisa/Wambulishe/330 subdivided into 2032, 2033 and 2034). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8291/eng@2025-11-28

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