[2021] KEHC 8339 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CIVIL APPEAL NO. 90 OF 2019

(Being an appeal from the original ruling and order of Hon. SO Ongeri, Principal Magistrate, of 17th September 2017 in Vihiga PMCCC No. 110 of 2019),

JOSEPH RUGUNZA SAMAGEDI........................................APPELLANT

VERSUS

WYCLIFFE LIONA KHAMASI..................................1ST RESPONDENT

FRANCIS LIONA KHAMASI.....................................2ND RESPONDENT

LINET CHIMOLI KHAMASI.....................................3RD RESPONDENT

EUNICE INDAKHO KHAMASI.................................4TH RESPONDENT

OLIVER CHIMULI KHAMASI..................................5TH RESPONDENT

JUDGMENT

1. The suit at the trial court, in Vihiga PMCCC No. 110 of 2019, was initiated by the appellant herein against the respondent, for two injunctions. One, to restrain the respondents and their agents from entering the plaintiffs home or dwelling places and from coming into physical contact or getting into close proximity with the plaintiff. Second, to restrain them with respect to causing trouble during the various ceremonies leading up to the disposal of the remains of the late Ruth Kodia Khamasi, who I shall hereafter refer to as the deceased.

2. The case by the appellant, as stated in his plaint, dated 11th July 2019, was that the appellant had married the deceased under customary law. Initially they cohabited without a formal ceremony of marriage from 1985 up to 2018 when dowry was paid. The union was blessed with two children. The deceased had previously cohabited with another man, known as Isaac, up to 1984, when they went separate ways, and the said man died in 1984, and was buried at his home in Shinyalu, Kakamega. The respondents were related to the deceased in some way, details of which were not given in the plaint. It was averred that after the deceased died, the respondents became hostile to the appellant, and even threatened to make his life unbearable on the basis that the appellant had apparently not accorded to them the recognition and preferential treatment that they felt they were entitled to in view of the relationship. It was further averred that they had threatened to invade the home of the appellant to disrupt burial processes.

3. The plaint by the appellant was lodged at the registry, on 11th July 2019, simultaneously with a Motion of even date. The Motion sought temporary versions of the permanent injunctions sought in the plaint, to last pending the hearing of the Motion and of the main suit. The Motion was placed before the trial court on the same day, 11th July 2019, was certified urgent and temporary injunctive orders were granted in terms of the prayers made in the application. It was directed that the Motion dated 11th July 2019 be served, for inter partes hearing on 16th July 2019.

4. The affidavit of service in the trial record, sworn on 15th July 2019, by Abraham Balusi Manyanyi, advocate, indicates that three of the respondents, the defendants in the suit, were served with the plaint, the Motion and the orders extracted from the prayers granted by the court, at 4. 00 PM on 11th July 2019.

5. The respondents did not file a defence to the plaint. They did two things instead. One, they filed a reply to the Motion dated 11th July 2019, and, two, the filed a Motion, dated 16th July 2019, seeking the striking out or dismissal of the suit for not disclosing a cause of action.

6. The replying affidavit to the motion of 11th July 2019 was sworn by the 1st respondent. He averred that the deceased was the mother of the respondents, and the wife of their late father, Isaac Liona Khamasi. He stated that their parents had separated sometime in the 1980s, but their marriage was not subsequently formally dissolved. Their late father had paid dowry for the deceased, who then adopted the name of their late father. He asserted that according to customary law, where a woman separated from her husband, and remarried, upon her death she was buried at the home of her first husband. He denied threatening the appellant, saying that after the deceased’s demise they had visited the home of the appellant, to discuss burial arrangements, especially that her remains be interred at their late father’s home at Shinyalu, but they disagreed. He averred that after that they did not communicate with the appellant again, and they did not go back to his home. He complained that the order of 11th July 2019 was used to have the remains of the deceased, their mother, removed from the mortuary and interred in their absence. He contended that the appellant used the order to bar them from attending their mother’s burial. He further complained that the said ex parte orders effectively disposed of the suit since the court had granted final orders, and they had been condemned unheard. He complained further that the appellant concealed information from the court, to the extent that he did not disclose the actual relationship between them and the deceased, and the orders were, therefore, obtained fraudulently. He urged that the application dated 11th July 2019 be dismissed.

7. The Motion dated 15th July 2019 was founded on grounds that the suit did not disclose a cause of action against the respondents, the remains of the deceased had since been disposed of, and retaining the suit was going to be a waste of time. The affidavit in support of the application was sworn by the 1st respondent, on 15th July 2019. He averred that the appellant had obtained ex parte orders to bar them from interfering with funeral arrangements for their late mother, the deceased. He stated that the deceased had previously been married to their late father, who hailed from Shinyalu, before she later married the appellant, who hailed from Vihiga. He asserted that she ought to have been buried in Shinyalu. He complained that the orders made on 11th July 2019 were used to facilitate burial of the remains of the deceased, before the court had a chance to determine who was entitled to bury her. He disclosed that the remains were interred on 13th July 2019. He averred that the appellant had no intention to have the court determine who was entitled to bury the deceased, instead he misled the court to give orders whose effect was to bar them from burying their mother, and that as the suit stood, it disclosed no cause of action. He prayed that the same be dismissed.

8. The court directed, on 16th July 2019, that the two applications, dated 11th July 2019 and 16th July 2016, be disposed of simultaneously, by way of written submissions. Only the appellant filed written submissions. The court delivered its ruling on 17th September 2019. The court found that a prayer for permanent injunction to bar the respondents from coming into contact with the appellant was ambiguous, and was incapable of execution. The plaint was struck out and the application dated 11th July 2019 was dismissed with costs.

9. The appeal herein arises from the said orders. It is averred that the trial court misapprehended the evidence on record or its decision was not supported by established facts, the established principles of judicial precedent were flouted and the court acted on wrong principles, and the ruling did not comply with Order 21 Rule 4 of the Civil Procedure Rules.

10. Directions on the disposal of the appeal were given on 8th October 2020, for canvassing by way of written submissions. Only the appellant filed written submissions. I have read through them and noted the arguments made. No case law was cited.

11. The trial court faced two applications, the most critical one being that seeking the striking out of the suit for not disclosing a cause of action, for once that was determined, the determination of the other became academic.

12. I have carefully perused through the plaint filed before the trial court. I have found it to be incredibly vague, when looked at against the facts deposed in the two affidavits sworn by the 1st respondent. The relationship between the deceased and the respondents was not disclosed in the plaint, yet that alone was the foundation of the entire proceedings. The 1st respondent disclosed that the deceased was their mother. That was a critical fact that ought to have been disclosed, as it presented the background to the dispute that was there between the appellant and the respondents. The appellant did not disclose the nature of that dispute, in fact he did not even plead that there was a dispute of any kind. He merely averred that the respondents became hostile, and issued threats to interfere with burial processes. He made no disclosure at all as to the possible background to the alleged hostility and the alleged threats.

13. It should not be left to the defendants to fill up gaps in the plaint, nor for the court to make presumptions as to actual nature of the dispute between the parties. The plaintiff has a responsibility to make a full disclosure to the court to enable the defendants understand the case against them, so that they can proffer a comprehensive defence to it, and so that the court can do justice to the parties based on all the facts relevant to the dispute at hand.

14. The nature of the dispute that the appellant was placing before the court related to the burial of the mother of the respondents. Naturally, where a person passes on, the responsibility for their burial rests with their spouse and their children. Either side cannot exclude the other for they both are closely related to the dead. It is particularly more important the children, since there would a be a biological tie between them. To contemplate a burial where the children of their dead mothers, the subject of the burial, are to be locked out is to invite trouble. Obviously, the dispute herein was triggered by the death of the deceased. Naturally, the children of the deceased, upon being notified of the death, would have been interested in burying their mother. If there was reason for them to be excluded from that event, then concrete reasons needed to be advanced. The facts placed before the court could not have come from a party who was keen on getting justice, but rather one whose agenda was undermine the rule of law and administration of justice.

15. I have read through the written submissions that the respondents placed before the trial court. I agree with the respondents that the second prayer in the plaint had been overtaken by events, as it related to burial of the remains of the deceased, and as the time the application for striking out was being filed, the remains had been buried, that meant that there would have been no need to lead any evidence to support that prayer. That left the first prayer, which had two limbs. The first, that the respondents be restrained from entering the plaintiff’s home or dwelling places. The second, that they be barred from coming into physical contact or close proximity with the appellant.

16. The trial court dismissed the suit primarily on the second limb of the prayer. The court found it ambiguous. I am not clear what that meant. The court also stated that it was an order incapable of being enforced or executed. I agree. An order granting such a prayer would be too wide, unless the contact contemplated was limited to certain specified circumstances. What would happen where the parties found themselves sitting at close proximity in a public transport vehicle, or in church, or rubbing shoulders in such other public places as shopping malls. No doubt a court properly exercising its mind to the law cannot possibly grant such a broad order, that would present monumental challenges with implementation.

17. The court appreciated that the first limb of the first prayer was arguable or triable. However, it did not go beyond saying so. Where the court finds that some fact is triable, it ought to clear the suit for trial. My view is that once the court found that that limb raised an arguable or triable issue the court should have declined to strike out the suit, and should have allowed the same to go to full trial on that issue, or on any other that the appellant might have been minded to introduce into the matter by way of amendment.

18. Should I allow the appeal on that score, that the trial court had found that the first limb of the first prayer had raised a trial issue, and ought to have refrained from striking out the suit? I do not think so. I do not find any basis for the court coming to that conclusion. Indeed, it gave no reasons at all for so concluding. When one interrogates the plaint closely, it will emerge that even that first prayer was not arguable or triable. It is expressed in broad and vague language. Restraint from entering a place is about trespass. Trespass can only be committed with respect to a particular or specific place, so that the party restrained is clear in their mind as to the places where they ought not enter according to the court order. Being stopped from entering an undefined home or dwelling place is incredibly vague, and it would be unjust to condemn any party to such restraint. A home or dwelling sits on land, and the question is where is the specific land from the which the respondents were to be restrained from entering or accessing? These are matters that ought to be pleaded. Failure to plead such facts opens suits to being struck out for failing to disclose causes of action. The omission to plead such facts leaves gaps that a party should not wait to fill at the trial. Disclosure at trial would amount to an ambush, and is unfair and unjust to the defence.

19. One answer to an application for striking out of a suit for non-disclosure of a cause of action, is, for the party whose pleadings are under attack, to apply to amend its pleadings before the application is argued. Insisting on pushing through with the hearing of the application exposes that party to grave danger of their suit being dismissed. The argument that a party has a constitutional right to be heard on their suit whatever the case does not hold, for the enjoyment of that constitutional right is available only where the party has filed proper and complete pleadings.

20. The entire suit was constructed around the burial of the deceased. The deceased was buried. It would mean that the central plank of the suit was lost the moment the remains were disposed of. I am not persuaded that there is any merit in the instant appeal. The trial court exercised its mind properly on the matter that was before it, and came to the right conclusion. The appeal should fail. I hereby dismiss the same. The respondents shall have the costs.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 19TH DAY OF MARCH 2021

W. MUSYOKA

JUDGE