[2013] KEHC 2592 (KLR)
The court found that the plaintiffs had demonstrated a prima facie case that the defendant had no legal right to inter the late Tarkok Tapkurkor on the suit land, which is registered in the name of the deceased Cosmas and managed by the plaintiffs. The facts presented by the plaintiffs were uncontested, as the...
Source-derived case information.
- Citation
- [2013] KEHC 2592 (KLR)
- Parties
- Plaintiff: Florentina Kimoi Kimutai; Plaintiff: Another (2nd Plaintiff, son of John Kimutai Cosmas); Defendant: Francis Chuma
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 385 of 2013
- Procedural Posture
- Injunction Application / Interlocutory Application for Injunction Pending Hearing and Determination of Suit
- Outcome
- Interlocutory injunction granted in favour of the plaintiffs.
- Legal Topics
- Injunctive Relief, Burial Rights, Ownership Disputes, Trespass, Capacity to Sue
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Florentina Kimoi Kimutai
Plaintiff
Another (2nd Plaintiff, son of John Kimutai Cosmas)
Plaintiff
Francis Chuma
Defendant
Procedural Posture
Injunction Application / Interlocutory Application for Injunction Pending Hearing and Determination of Suit
Legal Issues
- 1 Whether the plaintiffs are entitled to an interlocutory injunction restraining the defendant from interring the late Tarkok Tapkurkor on the suit land pending determination of the suit.
- 2 Whether the defendant has any legal right to bury the late Tarkok on the suit land registered in the name of the deceased Cosmas.
- 3 Whether the plaintiffs have demonstrated a prima facie case for the grant of an injunction.
Ratio Decidendi
The court found that the plaintiffs had demonstrated a prima facie case that the defendant had no legal right to inter the late Tarkok Tapkurkor on the suit land, which is registered in the name of the deceased Cosmas and managed by the plaintiffs. The facts presented by the plaintiffs were uncontested, as the defendant failed to respond or appear. The court noted that allowing the burial would make any future remedy, such as exhumation, difficult and traumatic. Therefore, to preserve the subject matter and prevent irreparable harm, the court granted an interlocutory injunction restraining the defendant from interring the late Tarkok on the suit land pending the hearing and determination...
Court Disposition
Interlocutory injunction granted in favour of the plaintiffs.
Orders
- An order of injunction is issued restraining the defendant from interring the late Tarkok Tapkurkor on the land parcel Kiplombe/Kuinet Block 8 (Kaplegetet)/7 pending the hearing and determination of this suit.
- The costs of this application shall be costs in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT ELDORET
E&L 385 OF 2013
FLORENTINA KIMOI KIMUTAI & ANOTHER.................PLAINTIFFS
VS
FRANCIS CHUMA..........................................................DEFENDANT
RULING
The application before me is the application dated 9 July 2013 filed by the plaintiffs. It is an application brought under the provisions of Order 51 of the Civil Procedure Rules and Section 1A, 3 and 3A of the Civil Procedure Act and all enabling provisions of the law. In the said application, the plaintiffs seek orders of injunction to restrain the defendant from effecting the burial of the late Tarkok Tapkurkor on the land parcel Kiplombe/Kuinet Block 8 (Kaplegetet) /7 pending the hearing and determination of this suit. The said application is supported by the affidavit of the first plaintiff.
Despite being served with the application, the defendant never filed any response to the same. Neither has the defendant entered appearance nor has he filed a statement of defence despite being served with summons. The application is therefore uncontested by the defendant.
The 1st plaintiff is the wife to one John Kimutai Cosmas (deceased). Cosmas died in the year 2006. The 2nd plaintiff is the son to the late Cosmas. The suit land Kiplombe/ Kuinet Block 8 (Kaplegetet)/7 is registered in the name of Cosmas and it is deponed that the same is under the management of the plaintiffs.
It is averred that Tarkok Tapkurkor (deceased) was residing on the suit land as a trespasser and she died on 3 July 2013. The defendant is the son of the late Tarkok. It is further averred that the defendant now wants to bury Tarkok on the suit land without any colour of right. It is for that reason that the plaintiffs want the defendant stopped from interring the late Tarkok on the suit land. It is further stated that the late Tarkok has her ancestral home in Ngechek, Nandi which is distinct from the suit land. The plaintiffs have averred that they have offered to shoulder some expenses to facilitate the interment of the late Tarkok on her land in Ngechek but the defendant has refused and insisted on interring the late Tarkok on the suit land.
In the plaint, the plaintiffs have sought inter alia declaratory orders that the plaintiffs are the legal owners of the suit land and that the defendant is a trespasser. They have also sought orders of permanent injunction to restrain the defendant from interring the late Tarkok on the suit land. In addition they have sought orders to have the defendant evicted from the suit land.
The facts as alluded by the plaintiffs have not been contested by the defendant. I am not sure whether the plaintiffs have letters of administration, and it could be that their capacity to institute this suit, if the same is being instituted on behalf of the estate of Cosmas, is questionable. Nevertheless, I am of the view that the plaintiffs have demonstrated prima facie that the defendant has no colour of right to inter the late Tarkok on the suit land. In the event that the late Tarkok is interred on the suit land, it will no doubt be a difficult, if not a traumatizing task, to conduct an exhumation. I think it is best that I stop the interment of the late Tarkok on the suit land pending the hearing of this case, which ought to be heard and determined on a priority basis. The defendant can then have opportunity to demonstrate why he ought to be allowed to bury the late Tarkok on the suit land.
For the above reasons, I do issue an order of injunction restraining the defendant from interring the late Tarkok on the land parcel Kiplombe/Kuinet Block 8 (Kaplegetet)/ 7 pending the hearing and determination of this suit. The costs of this application shall be costs in the cause. It is so ordered.
DATED, SIGNED AND DELIVERED THIS 24TH DAY OF JULY 2013
JUSTICE MUNYAO SILA
ENVIRONMENT AND LAND COURT AT ELDORET
Read in open Court
In the Presence of:-
Mr. G. Tarus present holding brief for Mr. Kirwa for the Plaintiff.
N/A for the defendant who has not entered appearance