[2014] KEHC 3281 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ENVIRONMENT AND LAND CIVIL CASE NO. 167 OF 2013

DINAH CAREN ONDIEK AKINYI ……………………………………….. PLAINTIFF

VERSUS

LEUKADIA AJWANG ONDORO ……………….……………… 1ST DEFENDANT

THADIUS OTIENO ONDORO …………………………………. 2ND DEFENDANT

RULING

The plaintiff brought this suit against the defendants on 10th April 2013, seeking; an order of eviction against the defendants from all that parcel of land known as LR No. Kabondo/Kowidi/428 (hereinafter referred to as “the suit property”). In her plaint dated 10th April 2013, the plaintiff averred that she is the administratix of the estate of one, Tito Tobias Akinyi (hereinafter referred to as the “deceased”) who was at all material times registered as the proprietor of the suit property. The plaintiff averred further that sometimes in July 1998, the defendants entered into the suit property unlawfully and erected houses thereon,which houses the defendants had occupied upto the time the suit was filed. The plaintiff averred further that the defendants are also cultivating a portion of the suit property under their occupation. The plaintiff contended that as a result of the defendants’ wrongful and unlawful entry into the suit property, the estate of the deceased has been denied and/or deprived of the right to use and occupy a portion of the said property in occupation of the defendants. The plaintiff averred further that in the year 2008, the plaintiff lodged a complaint against the defendants with the police and the defendants who were charged and convicted of the offence of trespass on the suit property. The plaintiff averred further that despite demand and notice of intention to sue that was served upon the defendants, the defendants have refused to vacate and hand over possession of the suit property under their occupation to the plaintiff thereby rendering the filing of this suit necessary.

According to the court record, the 1st defendant is said to have been served with summons to enter appearance together with the plaint which summons she is said to have received on her own behalf and on behalf of the 2nd defendant. However, no appearance was entered on behalf of any of the defendants and no defence has been filed. There is an application on record for request for judgment in default of appearance and defence which was filed on 17th December, 2013. From the notes in the court file, the Deputy Registrar declined to enter interlocutory judgment in favour of the plaintiff on the ground that the purported service upon the defendants was not proper.

On 19th March 2014 the plaintiff filed an application by way of Notice of Motion dated 18th March 2014 seeking an order that pending the hearing and determination of this suit, the 2nd defendant by himself or through his agents, employees and/or representatives should be retrained by in interlocutory injunction from burying and/or disposing of the body of the 1st defendant on the suit property. The plaintiff’s application was brought on the grounds set out on the face thereof and on the supporting affidavit of the plaintiff sworn on 18th March 2014. In her affidavit aforesaid the plaintiff has stated that the 1st defendant herein, died on 11th March 2014 and that the 1st and 2nd defendants were residing on the suit property where the 2nd defendant has made arrangement to bury the remains of the 1st defendant. The plaintiff has stated further that the burial of the 1st defendant on the suit property shall aggravate the acts of trespass which the plaintiff has complained of in this suit.It is on account of the foregoing that the plaintiff has sought an injunction to restrain the 2nd defendant from interring the remains of the 1st defendant on the suit property.

The application was served upon the 2nd defendant who appointed the firm of P. Ochieng Ochieng and Co. Advocates to act for him. The 2nd defendant filed a replying affidavit sworn on 2nd April 2014 in opposition to the application. In his affidavit in reply, the 2nd defendant admitted that the 1st defendant who is his mother died on 11th March 2014 after being taken ill. The 2nd defendant stated further that they have been living as a family on the suit property for over 22 years and that in the course of those years, his father, eldest brother, 2nd eldest brother and the wife of his eldest brother who died on 1992, 1997, 1994 and 1996 respectively have all been buried on the suit property without any objection from the plaintiff herein or the deceased.

The 2nd defendant annexed to his affidavit a copy of a letter from retired chief of the area one, Odindo J. Orongo confirming that the deceased 1st defendant and her family have been occupying the suit property over the years and that the said persons have been buried on the suit property. The 2nd defendant has stated further that the suit property is the only home that he knows and that it is where he currently lives and also the place where the deceased 1st defendant had his home. The 2nddefendant has contended that if the orders sought are granted, he will have nowhere to bury the body of the deceased 1st defendant. The 2nd defendant has urged the court to dismiss the plaintiff’s application so that he may proceed to bury the remains of the 1st defendant. When the plaintiff’s application came for hearing before me on 27th May 2014, Mr. Moracha Advocate appeared for the plaintiff while Mr. Nyasimi appeared for the defendants. In his submissions, Mr. Moracha relied on the grounds on the face of the application and on the supporting affidavit of the plaintiff/applicant. Mr. Moracha submitted that the plaintiff is the registered proprietor of the suit property and that the defendants had trespassed on the same. Mr. Moracha submitted further that as a trespasser the 2nd defendant has no right to inter the remains of the 1st defendant (deceased) on the suit property and as such the orders sought should be granted.

In his submission in reply, Mr. Nyasimi also relied on the 2nd defendant’s affidavit filed in response to the application and submitted that there is a dispute over the ownership of the suit property and that the burial of the body of the 1st defendant on the suit property would not confer title of the suit property either on the deceased or the 2nd defendant. Mr. Nyasimi submitted that the deceased and the 2nd defendant have been staying on the suit property over the years and urged the court to allow the 2nd defendant to proceed with the burial of the body of the 1st defendant on the suit property pending the determination of the issue of the ownership of the suit property.

I have considered the plaintiff’s application together with the affidavit filed in support thereof. I have also considered the 2nddefendant’s affidavit filed in opposition to the application. Finally, I have considered the oral submissions by the advocates for both parties. The law on temporary injunctions is now well settled. As was stated in the case of Giella –vs- Cassman Brown & Co. Ltd. [1973] E. A 358, an applicant for a temporary injunction must demonstrate that he has a prima facie case against the respondents with a probability of success and that unless the orders sought are granted, he will suffer irreparable injury. In the event that the court is in doubt as to the foregoing, the court will determine theapplication on a balance of convenience. It is on the basis of the foregoing principles that I need to consider the application before me. What I need to determine first is whether the plaintiff has demonstrated that she has a prima facie case against the defendants with a probability of success. What the plaintiff has sought in the present application is to restrain the 2nd defendant from interring the remains of the 1st defendant on the suit property.

I am of the opinion that the plaintiff’s application has been brought in vacuum in that it has no basis on the pleadings on record. As I stated at the beginning of this ruling, the plaintiff’s suit as against the defendants was seeking only one prayer, namely, an order for the eviction of the defendants from the suit property. There is no prayer in the plaint for a permanent injunction or any other injunction for that matter against any of the defendants. There is also no averment in the plaint regarding the death of the 1st defendant and the 2nd defendant’s intention to bury her remains on the suit property. The plaintiff ought to have amended her plaint to plead the new facts that have arisen since the filing of the suit which includes the death of the 1st defendant and the intention of the 2nd defendant to inter her remains on the suit property. The plaintiff also ought to have pleaded in the plaint in what manner the intended interment of the remains of the 1st defendant on the suit property would be unlawful and sought an injunction in the plaint to restrain such action. The plaintiff has not done any of these. In the circumstances, there is no basis upon which I would be able to find that the plaintiff has established a prima facie case against the 2nd defendant with the probability of success in view of the fact that the plaintiff’s present application is not hinged on her pleadings. The case set out in the application before me is at variance with the case pleaded in the plaint. That being the case, I am not satisfied that the plaintiff has established a prima facie case against the 2nd defendant with the probability of success at the trial.

Having reached that conclusion, I am not obliged to consider whether the plaintiff would suffer irreparable injury unless the order sought is granted. I would however wish to state that if I was to determine that issue, I would have determined the same as against the plaintiff. The 2nd defendant has deponed that they have been in occupation of the suit property for over 22 years, during which period four (4) members of his family including his father and two brothers have been buried on the suit property. The plaintiff in her plaint has also admitted that the defendants have been on the suit property since the year 1998 which is more over fifteen (15) years. It is also not in dispute that the deceased 1st defendant and the 2nd defendant have their residences on the suit property and that no objection was raised to the previous burials on the suit property. I am unable therefore to see what irreparable harm would befall the plaintiff if the 1st defendant (deceased) is buried on the suit property.

As submitted rightly by the advocate for the 2nd defendant, the mere act of interring the remains of a deceased person on a parcel of land does not confer title to that land on the estate of the deceased or on her beneficiaries. I am therefore not persuaded that the plaintiff would suffer irreparable harm if the orders sought herein are not granted. The suit property measures about 7. 4 hectares. There is no evidence before me that the burial of the 1st defendant on the suit property would deprive the plaintiff of the suit property or the use thereof. The upshot of the foregoing is that the plaintiff’s application dated 18th March 2014 is not for granting. The same is hereby dismissed. The costs to the application shall be in the cause.

Delivered, dated and signed at Kisii this 29th day of May 2014.

S. OKONG’O

JUDGE

In the presence of:-

Mr. Oguttu h/b for Bana for the Plaintiff

N/A for the Defendants

Mr. Mobisa Court Clerk

S. OKONG’O

JUDGE