[2003] KEHC 581 (KLR)
The court found that the applicant had failed to act with due diligence, having waited over 20 years before seeking to restrain the burial of the deceased on the disputed land. The court held that the applicant was estopped from blocking the burial at the last minute, especially given the emotional and financial...
Source-derived case information.
- Citation
- [2003] KEHC 581 (KLR)
- Parties
- Plaintiff: Kihoto Farmers Co. Ltd; Defendant: Mary Wanjiku Ndichu
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 178 of 2003
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Legal Topics
- Interlocutory Injunctions, Burial Disputes, Estoppel, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kihoto Farmers Co. Ltd
Plaintiff
Mary Wanjiku Ndichu
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the defendant should be restrained from burying the deceased on the disputed land pending hearing of the application.
- 2 Whether the applicant is entitled to an interlocutory injunction after a delay of over 20 years.
- 3 Whether the application constitutes an abuse of court process.
Ratio Decidendi
The court found that the applicant had failed to act with due diligence, having waited over 20 years before seeking to restrain the burial of the deceased on the disputed land. The court held that the applicant was estopped from blocking the burial at the last minute, especially given the emotional and financial preparations already made by the respondent, the widow. The application was deemed an abuse of the court process, lacking good faith and urgency. The court further noted that any damage suffered by the applicant could be compensated by other legal remedies, and therefore, the equitable relief of an injunction was not warranted. Consequently, the application was dismissed.
Court Disposition
application dismissed
Orders
- The application for an interlocutory injunction restraining the defendant from burying the deceased on Land Parcel No. 12930, Naivasha Municipality is dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO. 178 OF 2003
KIHOTO FARMERS CO. LTD………………………………..PLAINTIFF
VERSUS
MARY WANJIKU NDICHU………………………………...DEFENDANT
RULING
This application has been brought under certificate of urgency through Chamber Summons.
The application has relied on Order XXXIX R. 1 & 2 of the Civil Procedure Rules and Section 3 (A) of the Civil Procedure Act, Cap. 21, Laws of Kenya. The application basically seeks the following Order:-
“That the defendant/respondent be restrained by herself/servants, agents or otherwise from burying the body of Joseph Ndichu Gacheru deceased on Land Parcel No. 12930 – Naivasha Municipality on 6 th November, 2003 or any other date until this application is heard inter -parties.”
This Court has carefully perused the submissions by the applicant’s counsel. Apart from the above, I have also had an opportunity to peruse all the attached documents in support of the application. Apparently, the deceased viz, Joseph Ndichu Gacheru was registered as the owner of the above parcel of land from 1st April, 1982.
Assuming that the deceased took occupation around that period then it means that he had stayed on the disputed land for over 20 years. Unfortunately, during that lengthy period, the applicant never filed any suit nor raised any hue and cry.
The applicant sat on his rights till the deceased passed away and waited for the eleventh hour to block his burial. According to the applicant the respondent is the wife of the deceased. Having lost her husband, the respondent must not only be devastated but also traumatized. Since the burial has been set down for tomorrow, it is imperative that all the necessary arrangements have already been made.
In African Society, these arrangements usually involve a lot of expenses in the name of giving a departed relative - “ a decent burial.” Having sat for his rights for over 20 years, the Applicant has to be estopped from blocking the burial.
Apparently, the application was not brought with any due diligence nor good faith. The application is obviously an abuse of the process of the Court. Whatever damage the applicant may incur may be compensated by other suitable remedies which can be provided by the law.
In view of the above, the application is hereby dismissed.
MUGA APONDI
JUDGE
Ruling read, signed and delivered in Open Court in the presence of M/s G.
M. Njuguna, Advocate for the Plaintiff.
MUGA APONDI
JUDGE
5TH NOVEMBER, 2003