Felisters Nafula Simiyu v Charles Kuria

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG'A** **CIVIL SUIT NO. E005 OF 2026** **FELISTERS NAFULA SIMIYU .................... APPLICANT/PLAINTIFF** **VERSUS** **CHARLES KURIA ............................... RESPONDENT/DEFENDANT** **RULING** 1. This Ruling relates to the Applicant's Notice of Motion dated 3rd September, 2026, brought under **Sections 1A, 1B** and **3A** of the **Civil Procedure Act, Order 40 Rules 1 and 2,** and **Order 51 Rules 1** and **3** of the **Civil Procedure Rules, 2010**, and the inherent jurisdiction of this Court. The application was certified urgent and directed to be served for an *inter partes* hearing on 8th September, 2026. 2. The Applicant seeks, in summary: 1. **Temporary injunctive orders restraining the Respondent, his family, agents or persons acting on his instructions from collecting, receiving, removing, transferring or burying the body of the late Peter Mutiti Kuria alias Peter Kabiru ("the deceased");** 2. **A like order directed at the management of the mortuary facility where the body is or will be preserved, restraining release of the body save with the Applicant's written authorisation or further order of the Court;** 3. **An order granting the Applicant unrestricted access to participate in funeral planning, body preservation, repatriation and burial arrangements; An order restraining the Respondent from taking possession of or intermeddling with the personal effects, mobile phone, bank details, land documents and other assets of the deceased currently in the Applicant's possession; and** 4. **Police assistance in enforcement, together with costs.** 3. The application is supported by the Applicant's affidavit, sworn on 3rd September, 2026, in which she deposes that she was the deceased's cohabiting partner from 15th November, 2022; that customary marriage negotiations took place at her parents' home in Cherang'any, Trans-Nzoia County, on 20th January, 2024; and that a dowry of Kshs. 400,000 was agreed, of which Kshs. 100,000 was paid in part on 15th October, 2025 and 20th December, 2025. She further deposes that the deceased died on 12th August, 2026 in Boston, Massachusetts, USA, while travelling home to Kenya; that the Respondent (the deceased's brother) has, in concert with the deceased's former wife in the USA, one Lydia Wanjiku Maina, taken control of funeral, repatriation and burial arrangements, to her total exclusion; and that a memorial service was already held in the USA on 2nd September, 2026 without her knowledge or participation. **Proceedings before court** 1. The matter first came up on 4th September, 2026 for directions, when the Court, **Muriithi J**, certified the application as urgent and directed that it be served for hearing on Tuesday, 8th September, 2026 before the Vacation Duty Judge. 2. The defendant turned up in court. He had not filed any documents, but given the nature of the matter, I decided to hear him. 3. Today, 8th September, 2026, the matter proceeded for directions. The Respondent had not filed responses, as they had agreed, but the plaintiff changed her mind at midnight today. It was his wish that the brother be given a decent burial, as the wives fight. 4. In the course of submissions, the Respondent stated that the deceased had five (5) wives, namely: Lydia Wanjiku Maina, Gladys Wangare Wangui, Irene Wangari Nyaga, Jane Muthoni, and the Applicant, Felisters Simiyu. It emerged, and was not seriously contested, that three of the named persons, Gladys Wangare Wangui, Irene Wangari Nyaga and Jane Muthoni do not reside at the deceased's home and do not, on the material before the Court today, fit the description of wives for purposes of the present dispute; that question does not fall for determination today. 5. What remains genuinely contested is whether Lydia Wanjiku Maina was in fact divorced from the deceased, as the Applicant asserts, or remained his wife, as appears to be the Respondent's position. Fortunately, the Respondent noted that, given the current circumstances in the United States, Lydia Wanjiku Maina is unlikely to attend the funeral and will come to Kenya later to lay wreaths. This means that, as far as the Kenyan programme is concerned, Lydia Wanjiku Maina is not a participant. 6. Significantly, both parties, as they indicated to the Court, agreed that they need to work together to bury the deceased without further delay. Given the urgency inherent in burial matters, and the fact that the underlying question of status, namely whether Lydia Wanjiku Maina is one of the deceased's true surviving wives, cannot fairly be resolved on the contested affidavit evidence currently before the Court. 7. This Court reserved its interlocutory ruling on the injunctive orders sought for delivery today, so as to enable the parties to proceed with burying the deceased while the dispute as to the true widow is determined. **Issues for determination** 1. Having considered the application, the supporting affidavit, and the record of proceedings, the issues arising for determination at this interlocutory stage are: 1. **Whether the Applicant has made out a prima facie case, with a probability of success, that she is entitled to the exclusive or primary right to bury the deceased and to control funeral and burial arrangements, to the exclusion of the Respondent and the other persons named as wives;** 2. **Whether the Applicant stands to suffer irreparable harm not compensable in damages if the orders sought are not granted;** 3. **Where the balance of convenience lies; and** 4. **What interim orders, if any, would best serve the interests of justice pending the determination of the substantive suit, having regard to the parties' stated willingness to cooperate?** **Analysis** 1. The principles governing the grant of a temporary injunction are well settled and were set out in **Giella v Cassman Brown & Co Ltd [1973] EA 358** where the Court stated as follows, though the wisdom of ***Spry VP***, as then he was, as follows: - *“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”* 1. The principles distilled from the said case are: 1. ***An applicant must first establish a prima facie case with a probability of success;*** 2. ***They will suffer irreparable injury which would not adequately be compensated by an award of damages, if the injunction is not granted;*** 3. ***If the Court is in doubt, it will decide the application on a balance of convenience.*** 2. The question of the relationship between the three limbs in **Giella v Cassman Brown(supra)** was addressed succinctly in [**Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/606/eng%402014-04-04), where the Court of Appeal **[W Ouko,as he then was, PO Kiage & K M'Inoti, JJA] stated** that these tests are sequential. The Court stated: **27. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. 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. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.** **28.It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.** 1. The Respondent does not dispute that the Applicant is a wife of the deceased. He contends that she is one of the many wives. Further, there is dispute as to whether Lydia Wanjiku Maina's marriage to the deceased was in fact dissolved. The Applicant contends, a matter the Respondent does not concede. These are not matters this Court can safely resolve on affidavit evidence at an interlocutory stage; they require viva voce evidence and, where necessary, documentary proof of the alleged divorce and of the customary marriage rites, to be tested at the hearing of the suit. 2. The Applicant has therefore not, at this stage, demonstrated a prima facie case of an exclusive right superior to all other claimants sufficient to warrant a final-in-substance exclusionary order against the Respondent or other members of the society. She has, however, demonstrated to be a wife for the purpose of burying the deceased. 3. On the second and third limbs, the Court recognises that burial disputes are, by their nature, urgent and that any delay caused by protracted litigation causes real distress to all parties and to the deceased's dignity. It is also plain from the record that neither excluding the Applicant nor excluding the Respondent would serve the interests of justice, and that both parties have indicated a willingness to cooperate in burying the deceased. While addressing irreparable injury and balance of convenience, **A. Ombwayo J**, in the case of [**Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2424/eng%402018-06-29), stated as follows: **Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury. The defendant has been collecting rent since the year 2005 and therefore the issue of irreparable harm if the injunction is not granted should not arise so long as the matter is fast-tracked for hearing.** **The court should issue an injunction where the balance of convenience is in favour of the plaintiff and not where the balance is in favour of the opposite party. The meaning of balance of convenience in favour of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favour of the plaintiffs, the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience, it is really the balance of inconvenience, and it is for the plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer. In other words, the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it.** 1. Part of the orders sought is for a mandatory injunction. In granting such an injunction, the standards applied are higher. In the case of **Nation Media Group & 2 others v John Harun Mwau [2014] KECA 308 (KLR)**, the Court of Appeal **[Maraga, Musinga & Ouko, JJ.A.]** posited as follows: **We agree with Mr. Mogere that in an application for a mandatory injunction the balance of convenience is not the only principle which an applicant has to satisfy as stated by the learned Judge at page 34 of the ruling. A different and higher standard than that in prohibitory injunctions is required before an interlocutory mandatory injunction is granted. Besides, the existence of exceptional and special circumstances must be demonstrated; as we have stated, a temporary mandatory injunction can only be granted in exceptional and in the clearest of cases. See KENYA** **AIRPORTS AUTHORITY vs. PAUL NJOGU MUNGAI & OTHERS Civil Application No. 29 of 1997 (CA). As the court stated in the case of LOCABAIL INTERNATIONAL FINANCE LTD. vs.** **AGROEXPERT & OTHERS [1986] 1 ALL ER 901**, **the court has to have “a high degree of assurance that at the trial it** **would appear that the injunction had rightly been granted…..” In these circumstances, the balance of convenience favours an order that preserves the status quo as to the deceased's estate and personal effects, prevents unilateral action by either side, and facilitates a joint, dignified burial pending the final determination of the Applicant's status and any consequential rights.** 1. Courts are reluctant to issue mandatory orders rather than prohibitory orders. As a fact, it is more advisable to have bodies buried decently than to grandstand. It is thus edifying to see parties agreeing to work together than the court issuing mandatory orders. In the *locus classicus* case of **Kamau Mucuha vs. The Ripples Ltd. Civil Application No. Nai. 186 of 1992 [1990-1994] EA 388; [1993] KLR 35** the Court of Appeal expressed itself as hereunder: ***…A court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the Court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted and that is a higher standard than is required for prohibitory injunction.”*** 1. Accordingly, this is not a case for an outright refusal or an outright grant of the exclusionary orders sought. It is a case for interim orders that hold the ring, protect the deceased's dignity and hold the family steadfast as we brace for more bruising contestations. This will also give effect to the parties' stated commitment to cooperate on burial, while directing an expedited resolution of the disputed question of status. 2. Fortunately, it was agreed that the deceased would be buried on his father’s land in Kiambugu Location. For the avoidance of doubt, the precise place of burial shall be determined in consultation with, and with due regard to the convenience of, the widow, the applicant herein, should any dispute arise in that regard. 3. This leaves the issue of costs, which is governed by **Section 27** of the **Civil Procedure Act**, which provides as follows: **(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.** **(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.** 1. Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of [**Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/158/eng%402018-10-18) had this to say: **"It is our finding that the position in law if that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown.** 1. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of [**Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/31/eng%402014-03-04), as follows: **18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation** **22. Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant.** 1. The Respondent was amenable to settlement. He finds himself caught in a predicament not of his own making. In the circumstances, I consider it just that each party bears its own costs. **Determination** 1. For the foregoing reasons, the Court makes the following orders: 1. **The Respondent, whether by himself, his family members, agents, kin or any person acting on his instructions, is restrained from unilaterally collecting, receiving, transferring or burying the body of the late Peter Mutiti Kuria alias Peter Kabiru without the participation of the Applicant, pending the hearing and determination of the suit;** 2. **The management of the mortuary facility/funeral home where the deceased's body is or will be preserved upon arrival in Kenya is restrained from releasing the body save to a burial arrangement jointly agreed upon and executed by the Applicant and the Respondent, or as this Court may further direct;** 3. **The Applicant and the Respondent shall forthwith join and have a say in the burial committee duly constituted to give a decent burial to the deceased and for purposes of agreeing and giving effect to the funeral, repatriation and burial arrangements of the deceased.** 4. **The Applicant shall have unrestricted access to view, pay respects to, and participate in all funeral planning, body preservation, repatriation handling and burial arrangements of the deceased, alongside the Respondent and other family members;** 5. **Neither party shall, without the consent of the other or a further order of this Court or the succession court, dispose of or intermeddle with the deceased's personal effects, mobile phone handset, bank accounts, land documents, or other assets, pending the hearing and determination of the suit;** 6. **The deceased would be buried on his father’s land in Kiambugu Location. For the avoidance of doubt, the precise place of burial shall be determined in consultation with, and with due regard to the convenience of, the widow, the applicant herein, should any dispute arise in that regard.** 7. **The Officer Commanding the nearest Ruathia Police Station shall render such assistance as may reasonably be required to secure compliance with these orders;** 8. **The question whether Lydia Wanjiku Maina's marriage to the deceased had been dissolved prior to his death is reserved for determination during the succession proceedings.** 9. **The Respondent to file requisite appearance within 14 days.** 10. **Each party to bear its costs.** 11. **Further directions on 7th October, 2026, before Court 2.** **DELIVERED, DATED** and **SIGNED** at **NYERI** this **8th** day of **SEPTEMBER**, the year of our Lord **Two Thousand and Twenty – Six**. Ruling delivered through Microsoft Teams Online Platform. .................................. **KIZITO MAGARE** **JUDGE** **In the presence of;** Mr Ngeri for the applicant Pro se defendant