https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5223

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUSIA** **ELC LOS NO. E003 OF 2026** **FLORENCE MUNGALA …………………………………… APPLICANT** **= VERSUS =** **JUMA OGANDO MUNGALA ……….……..…………. RESPONDENT** **R U L I N G** 1. The Applicant, Florence Mungala, filed the Notice of Motion dated 14th July 2026 seeking preservatory and injunctive orders pending the hearing and determination of the suit. Specifically, she seeks orders restraining the Respondent from burying, digging a grave, interring the remains of his late wife, or otherwise conducting any burial on Land Parcel **NO. MARACHI/BUMALA/1378**. She also seeks an order directing the Officer Commanding Station (OCS) to supervise and enforce the court’s orders. 2. The application is founded on the ground that the Applicant is the registered proprietor of the suit property measuring approximately 0.69 hectares. She contends that the Respondent has no legal right, consent, licence or interest authorizing him to bury his deceased wife on the land. 3. According to the Applicant, the intended burial would permanently interfere with her proprietary rights, diminish the value and use of the land, and occasion irreparable harm incapable of compensation by damages. She further asserts that if the burial proceeds, it would complicate the pending adverse possession suit by creating a permanent feature on the land, thereby affecting the substratum of the dispute and making any eventual enforcement of the court’s decision difficult. She therefore urges the court to preserve the suit property pending the determination of the main suit. 4. In her supporting affidavit, the Applicant reiterates that she holds a title deed to the suit property and states that she learnt on or about 7th July 2026 that the Respondent intended to bury his late wife on the land and had already commenced clearing bushes and constructing structures in preparation for the burial. 5. She further depones that the Respondent has continued trespassing and cultivating the land without lawful justification, thereby denying her the use and enjoyment of her property. She also states that she had initially filed a similar application before the Magistrates’ Court but was directed to move the Environment and Land Court since the dispute concerns the same parcel of land which is already the subject of the present proceedings. **THE RESPONDENT’S CASE** 1. The Respondent, **JUMA OGANDO MUNGALA,** opposes the application through a Replying Affidavit sworn on 30th July 2026. He avers that he is the son of the late Eliakim Mung’ala Owino, while the Applicant is his step-sister, and that the suit property forms part of their late father’s family land. 2. The Respondent states that he has lived on Land Parcel **NO. MARACHI/BUMALA/1378** from birth, a period of approximately 61 years, together with his family. He maintains that his late father gifted him the entire parcel during his lifetime, after obtaining the necessary Land Control Board consent, following which the land was transferred into his name and he was issued with a title deed in 1999. 3. He contends that his occupation of the land has been open, continuous and uninterrupted for decades. 4. The Respondent further avers that previous litigation over the land was instituted by the Applicant’s mother, **JESPA NABWIRE MUNG’ALA**, through Busia Land Tribunal Case No. 27 of 2000. He states that although a decree was initially issued in her favour, it was successfully challenged on appeal in Busia High Court Civil Appeal **NO. 16** of **2003**, where the decree was set aside. 5. According to him, despite the subsisting orders, the Applicant subsequently procured registration of the suit land in her name through succession proceedings unlawfully and irregularly without notifying or involving him. 6. He also alleges that the Applicant recently obtained a certificate of title in June 2026 after this suit had already been filed and that she instituted parallel proceedings before both the Magistrates’ Court and the Environment and Land Court over the same subject matter to obtain interim orders without disclosing the existence of the earlier suit. 7. Regarding the intended burial, the Respondent states that his late wife, **CAREN ANYANGO**, lived with him on the suit property throughout their marriage and that it is the only home she knew. He therefore wishes to bury her on the land where they resided. 8. He denies that the Applicant will suffer any prejudice because, according to him, she has never occupied, utilized or developed the land and has another home elsewhere. He maintains that the balance of convenience favours allowing the burial to proceed and prays that the application be dismissed with costs. **ORAL SUBMISSIONS** 1. At the hearing of the application, counsel for the Applicant submitted that the Notice of Motion was dated 14th July 2026, although the correct date ought to be 24th July 2026, being the date on which both the application and the supporting affidavit were sworn. Counsel relied entirely on the grounds set out in the Motion, the supporting affidavit and the annexed documents. 2. It was submitted that the Applicant had established a prima facie case since she is the registered proprietor of Land Parcel **NO. MARACHI/BUMALA/1378**, as evidenced by the title deed annexed to her affidavit. Counsel argued that the Respondent had no lawful right over the suit property and was attempting to unlawfully encroach upon it by burying his deceased wife thereon. Such burial, it was argued, would permanently alter the character of the land and interfere with the Applicant’s proprietary rights. 3. On the question of irreparable injury, counsel submitted that permitting the burial would occasion harm incapable of being adequately compensated by damages because any subsequent exhumation would be emotionally traumatic, socially disruptive and financially burdensome. Reliance was placed on paragraphs 5 and 6 of the supporting affidavit. 4. Counsel further argued that the balance of convenience favoured the Applicant because allowing the burial would complicate the pending suit, necessitate possible future exhumation and undermine preservation of the suit property, which forms the substratum of the dispute. 5. In support of those submissions, counsel cited **Republic -v- National Environment Tribunal Ex parte Palm Homes Ltd (2013) eKLR**. Counsel further submitted that although the Respondent’s Replying Affidavit raised numerous issues touching on the merits of the ownership dispute, those issues properly belong to the hearing of the main suit and should not determine the interlocutory application. 6. In opposition, counsel for the Respondent relied on the Replying Affidavit and submitted that the application lacked merit. Counsel contended that the issue of sub judice, as raised at paragraph 21 of the Replying Affidavit, had not been satisfactorily addressed by the Applicant. It was further submitted that the Applicant had failed to establish a prima facie case because the Respondent is the claimant in the substantive adverse possession suit and the Applicant had merely relied on her recent registration as proprietor, which occurred on 10th June 2026, only a short period before the present application was filed. Counsel argued that a title deed alone was not conclusive proof of ownership, particularly where its validity was under challenge in the main proceedings. 7. On irreparable harm, counsel submitted that the Applicant had not demonstrated any injury that could not be compensated. It was argued that the Respondent has been in continuous occupation and use of the suit property for many years, a fact acknowledged in the Applicant’s own affidavit, and that the land is ancestral family land over which the Respondent claims beneficial rights. 8. Counsel maintained that the Respondent is not a trespasser but the Applicant’s brother, whose home is situated on the suit land and who deponed that the land had been gifted to him by their late father. Counsel further argued that any hardship arising from a future exhumation would primarily be borne by the Respondent rather than the Applicant. It was therefore submitted that the balance of convenience favoured the Respondent, particularly in light of the lengthy history of litigation over the suit property, and the court was urged to dismiss the application. 9. In a brief rejoinder, counsel for the Applicant reiterated that the Applicant had satisfied the threshold for the grant of an interlocutory injunction by producing a valid certificate of title. Counsel disputed the Respondent’s contention that paragraph 11 of the supporting affidavit amounted to an admission that the Respondent had been gifted the land, and further submitted that the validity of the Applicant’s title was not dependent on the date upon which it was issued. **ANALYSIS AND DETERMINATION** 1. Having considered the pleadings, the affidavits on record and the rival oral submissions, the Court is of the view that the application raises a single issue for determination, namely: **Whether the Applicant has satisfied the threshold for the grant of a temporary injunction restraining the burial of the Respondent’s deceased wife on Land Parcel No. MARACHI/BUMALA/1378 pending the hearing and determination of the suit.** 2. The principles governing the grant of interlocutory injunctions are well settled. In **Giella -v- Cassman Brown & Co. Ltd [1973] EA 358**, the Court held that an applicant must establish: (i) a prima facie case with a probability of success; (ii) that he or she stands to suffer irreparable injury which cannot adequately be compensated by an award of damages if the injunction is not granted; and (iii) if the court is in doubt, it should determine the application on a balance of convenience. 3. These principles were reaffirmed by the Court of Appeal 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 provided that: “**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.”** 1. In the above case the Court emphasized that the three conditions are sequential and the applicant bears the burden of satisfying each one. 2. The first question is whether the Applicant has established a prima facie case. The meaning of a prima facie case was explained by the court in [**Mrao Ltd -v- First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2003/175/eng%402003-03-07)where the court provided that: “**A prima facie case in a civil application included but was not confined to a genuine and arguable case. It was a case which, on the material presented to the court, a tribunal properly directing itself would conclude that there existed a right which had apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter**.” 1. The Applicant anchors her claim on a certificate of title issued in her favour on 10th June 2026, contending that, as the registered proprietor, she is entitled to the protection afforded by Sections **24, 25** and **26** of the **Land Registration Act**. Indeed, registration confers upon a proprietor the rights and privileges appurtenant to ownership, and a certificate of title is prima facie evidence of proprietorship. 2. However, those statutory protections are not absolute. **Section** **26(1)(b)** of the **Land Registration Act** expressly provides that a certificate of title may be challenged where it is shown to have been acquired illegally, unprocedurally or through a corrupt scheme. 3. In the present case, the Respondent has mounted a substantive and documented challenge to the root of the Applicant’s title. He has exhibited documents showing that he was registered as the proprietor of the suit property in 1999, following an alleged lifetime gift from his late father after obtaining the requisite Land Control Board consent. 4. He further avers that he has remained in continuous occupation of the land for approximately 61 years, where he established his home and raised his family. More importantly, he has deponed that the Applicant’s registration was procured through succession proceedings founded on a decree that had earlier been stayed and subsequently set aside on appeal. 5. Whether those allegations will ultimately be proved is a matter for trial. Nevertheless, they are neither idle nor speculative. They raise serious questions concerning the legitimacy of the Applicant’s title which cannot be resolved at an interlocutory stage. 6. Equally significant is the fact that the Applicant herself acknowledges that the Respondent has long been in occupation and use of the suit property. The Respondent is therefore not a stranger or recent trespasser. Rather, he is a brother to the Applicant who asserts a longstanding proprietary interest over the land. This is also the very basis upon which he instituted the substantive suit claiming entitlement to the land. The Court must therefore refrain from making definitive findings on ownership at this interlocutory stage, lest it prejudice the determination of the main suit. 7. The Respondent has also raised the issue of sub judice and material non-disclosure by alleging that the Applicant had previously filed a similar application before the Magistrates’ Court seeking substantially the same relief. Although the Applicant explains that she approached this Court following directions on jurisdiction, the existence of those earlier proceedings is nevertheless a relevant factor in assessing the exercise of the Court’s equitable discretion, particularly where injunctive relief is sought. 8. The Court is therefore not persuaded that the Applicant has demonstrated a prima facie case with a probability of success. While the Applicant possesses a certificate of title, the Respondent has placed before the Court substantial evidence challenging the root of that title, asserting prior registration dating back to 1999, continuous occupation spanning several decades, and alleging that the Applicant’s registration emanated from a judicial process that had been overturned on appeal. 9. In those circumstances, the Respondent’s competing claim cannot be dismissed as frivolous or merely being a defensive mechanism. On the contrary, it discloses a serious triable case that substantially weakens the Applicant’s reliance on the recent registration alone. 10. On the question of irreparable injury, the Applicant argues that permitting the burial would permanently alter the character of the suit land and that any subsequent exhumation would be emotionally, culturally and financially burdensome. The Court appreciates that burial disputes are unique and that exhumation is not a remedy lightly undertaken. Nevertheless, the Court must equally consider the prejudice that would be occasioned to the Respondent if the injunction were granted. 11. The evidence before Court shows that the Respondent has lived on the suit property from birth, a period exceeding six decades. He avers that it is his matrimonial home, where his late wife resided throughout their marriage until her demise. Preventing him from burying his wife at what he considers to be her matrimonial home would occasion profound emotional and cultural hardship. Should the Respondent ultimately succeed at the trial, the opportunity to accord his wife a timely burial at her home would have been irretrievably lost. Conversely, the Applicant has not demonstrated that she is in actual possession or occupation of the land or that any immediate proprietary interest would be extinguished pending the determination of the suit. The prejudice likely to be suffered by the Respondent is therefore more immediate, substantial and incapable of complete redress. 12. Finally, on the balance of convenience, the Court finds that it tilts in favour of the Respondent. As stated by the Court of Appeal 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) the court provided that, “**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.**” Where doubt exists, the Court should adopt the course that carries the lower risk of injustice. 13. The Respondent has demonstrated longstanding occupation of the suit property dating back to 1999 as registered proprietor and indeed from birth as an occupant. He has established his home there and seeks to bury his deceased wife on land he claims was gifted to him by his late father. 14. The Applicant, on the other hand, only became the registered proprietor shortly before the institution of these proceedings, and the legality of that registration has been seriously questioned. In addition, the history of litigation over the suit property, including the allegation that the Applicant’s title arose from proceedings whose outcome was later overturned, reinforces the need for the Court to avoid granting interlocutory orders that may effectively determine the substantive dispute. 15. In the Court’s view, granting the injunction would effectively deprive the Respondent of exercising what he asserts to be rights over the land that he has occupied for decades before those rights have been adjudicated. Such an order would inflict greater prejudice upon him than the prejudice the Applicant is likely to suffer if the application is declined. The balance of convenience therefore lies in favour of the Respondent. **FINAL ORDERS AND DECLARATION** 1. In the end, the Court finds that the Applicant has failed to satisfy the conditions for the grant of a temporary injunction. Although the Applicant relies on a certificate of title, the Respondent has raised a substantial and bona fide challenge to the root of that title by exhibiting evidence of prior registration in his name, long and uninterrupted occupation of the suit property, and alleging that the Applicant’s registration was procured through proceedings founded on a decree that was subsequently set aside on appeal. 2. These are weighty issues that can only be conclusively determined at the trial. The Court is further persuaded that, in the peculiar circumstances of this case, the Respondent stands to suffer greater prejudice if restrained from burying his deceased wife at what he asserts to be her matrimonial home on land he has occupied for decades. 3. Accordingly, the Notice of Motion dated 24th July 2026 is hereby dismissed with costs. **Ruling dated, signed and delivered in open Court on this 31st day of July 2026.** **C. MUGAMBI** **JUDGE** **31ST JULY 2026**