[2010] KEHC 2076 (KLR)
The High Court found that the trial court properly exercised its discretion in granting a temporary injunction, as the respondents were the registered proprietors of the suit land and had established a prima facie case. The court held that issues regarding the form of the plaint and representative capacity were...
Source-derived case information.
- Citation
- [2010] KEHC 2076 (KLR)
- Parties
- Appellant: Florence Bukuru; Appellant: Wycliffe Oyondi Bukuru; Respondent: Lugari Yearly Meeting of the Religious Society of Friends Church; Respondent: Ephraim Malenya; Respondent: Rogers K. Wambia; Respondent: Jonathan Ombembo Ombima
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 47 of 2010
- Procedural Posture
- Civil Appeal / Judgment on Appeal Against Interlocutory Injunction Order
- Outcome
- appeal dismissed
- Legal Topics
- Temporary Injunctions, Burial Rights, Land Title Disputes, Representative Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Florence Bukuru
Appellant
Wycliffe Oyondi Bukuru
Appellant
Lugari Yearly Meeting of the Religious Society of Friends Church
Respondent
Ephraim Malenya
Respondent
Rogers K. Wambia
Respondent
Jonathan Ombembo Ombima
Respondent
Procedural Posture
Civil Appeal / Judgment on Appeal Against Interlocutory Injunction Order
Legal Issues
- 1 Whether the lower court erred in granting a temporary injunction restraining the appellants from burying the deceased on the disputed land.
- 2 Whether the plaint was defective for only seeking an injunction and not constituting a proper suit.
- 3 Whether the lower court had jurisdiction given the alleged boundary dispute/trespass.
Ratio Decidendi
The High Court found that the trial court properly exercised its discretion in granting a temporary injunction, as the respondents were the registered proprietors of the suit land and had established a prima facie case. The court held that issues regarding the form of the plaint and representative capacity were matters to be determined at the substantive hearing, not at the interlocutory stage. There was no evidence before the lower court to support the claim that the dispute was a boundary matter outside its jurisdiction. The appellants failed to pursue an early determination of the substantive suit as directed by the trial court. Consequently, there was no error of law or fact...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET
Civil Appeal 47 of 201
FLORENCE BUKURU WYCLIFFE OYONDI BUKURU.................................................APPELLANT
AND
LUGARI YEARLY MEETING OF THE
RELIGIOUS SOCIETY OF FRIENDS CHURCH......................RESPONDENT
THROUGH
EPHRAIM MALENYA ROGERS K. WAMBIA JONATHAN OMBEMBO OMBIMA.....................................RESPONDENTS
JONATHAN OMBEMBO OMBIMA.....................................RESPONDENTS
J U D G M E N T
This is an appeal from the Ruling /order of I. Maisiba Resident Magistrate wherein he, on the 17th day of March, 2010 issued orders of a temporary injunction restraining the Appellants herein by themselves their agents/servants/relatives/ or anybody acting on their instructions from burying or keeping the body of the deceased Japheth Buruku Oyondi on the parcel of land known as Lugari/Lukuyani Block 1 Vihiga /244 pending the hearing of the suit. The memorandum of Appeal raises the following grounds that
1. The lower court erred in law and fact in not dismissing the application on the ground that the plaint was defective as it had only a prayer of injunction and so a hearing date could not be fixed on a non-existent suit.
2. The lower court erred in law and fact in not dismissing the application on the ground that it had no jurisdiction to hear the suit as the matter was mainly on boundary dispute/trespass on land.
3. The lower court erred in law and fact in not dismissing the application as no leave was sought to bring a representative suit.
4. The lower court erred in law and fact in not dismissing the application as the principles for the Grant of an injunction were not met.
At the hearing of the appeal it was submitted for the appellants that the deceased was a member of the respondent church and had lived on the suit land for 31 years and had buried his three children on the same with the agreement and participation of the respondent. That when the appellants’ husband and father, respectively, died on 2nd March 2010 the Respondent participated in the burial arrangements only for them to turn around and obtain an order of injunction restraining the appellants from burying their deceased husband/father respectively on the suit land. Further submissions was that the deceased was to be buried on plot number 155/156 which is where the appellants homestead stands.
In opposing the appeal it was submitted that the Respondents had proved that they were entitled to the grant of an order for an injunction as they held title to the suit land. That the suit was ordered to be heard on its merit and this appeal is premature and ought to be dismissed with costs.
I have carefully perused the trial court’s proceeding and Ruling. I find that that court correctly directed its mind to the issues placed before it and addressed same appropriately. The suit land to wit LUGARI/LUKUYANI BLOCK 1 VIHIGA/244 is registered in the name of the Respondents as per copy of the title Deed produced before the trial court. That makes out a prima facie case in favour of the Respondents and that finding by the trial court was a sound one. There was no basis upon which the trial court could find that what was before him was a boundary dispute because no such material was placed before him.
The finding of the trial court on the issues of representative suit and the defect in the plaint to be matters for determination at the trial of the suit was sound. The appellants would have been best placed and their interests best served by an early determination of the suit which the trial court had ordered but which the appellants did not heed.
I find no error either of law or fact made by the trial court that would empower me to interfere with the ruling. This appeal has no merit and the same is hereby dismissed. In the circumstances of the case each party will bear its own costs. It is so ordered.
Dated signed and delivered at ELDORET this 30th day of June, 2010
P.M. MWILU
JUDGE.
In the presence of both appellants in person – present
Cheluget – Advocate for Respondents
Andrew – Court Clerk.