https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5005

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUSIA** **ELC LC NO. E027 OF 2024** **LUCAS VINCENT OMONDI …………………….……….. APPLICANT** **= VERSUS =** **CYRIL NAMWONJIA NYANGWESO** (Suing as the administrator & legal representative of the estate of **ALPHONCE NYANGWESO ALEBA**) **…………….…. RESPONDENT** **R U L I N G** 1. Before this Honourable Court for determination is the Notice of Motion dated the 23rd of July 2026. 2. The Applicant seeks injunctive orders restraining the Respondent from burying the body of Anne Koi Nanjala on the disputed portion measuring 2⅛ acres of **L.R. NO. SAMIA/BUTABONA/1250** pending the hearing of the application and the main suit for adverse possession. 3. He deposes that he purchased the suit portion from the Respondent’s late father on 19th December 2002, took possession immediately, fenced it and has been in open, peaceful, continuous and uninterrupted possession for over 12 years, cultivating maize, beans and other crops. 4. He contends that the Respondent has unlawfully sold the same portion to Beatrice Anyango Oduori, who now intends to bury her deceased daughter, Anne Koi Nanjala, on the land. 5. According to the Applicant, the burial is imminent and, if allowed, would permanently alter the character of the land, occasion irreparable harm, and render the pending adverse possession suit nugatory. He therefore urges the Court to preserve the status quo until the suit is determined. **THE RESPONDENT’S CASE** 1. The Respondent opposes the application through their Replying Affidavit dated 27th July 2026 and sworn on the even date, terming it **fatally defective, incompetent and an abuse of the court process**. 2. He avers that he neither occupies nor cultivates the suit land and that the current occupier is Beatrice Anyango Oduori, who has extensively developed and occupied the land with her children for nearly 20 years. 3. He states that interim injunctive orders had already been issued against Beatrice Anyango Oduori in separate proceedings despite her not being a party to the suit, and that the present application similarly seeks orders affecting her rights without joining her as a party, contrary to the rules of natural justice. 4. He further contends that the Applicant has approached the Court with unclean hands by concealing material facts and seeking to evict a third party through interlocutory orders. 5. The Respondent maintains that the deceased, Anne Koi Nanjala, is Beatrice Anyango Oduori’s daughter and not his relative, and therefore he has no control over the intended burial. He consequently prays that the application be dismissed with costs. **ANALYSIS AND DETERMINATION** 1. Having considered the Notice of Motion dated 23rd July 2026, the affidavits and the rival position by the parties, the court is of the view that the only issue that arises for determination is **whether the Applicant is entitled to the injunctive orders sought against the Respondent where the effect of such orders would be to restrain and adversely affect the rights** **of Beatrice Anyango Oduori, who is not a party to these proceedings.** 2. The Applicant seeks orders restraining the Respondent, his agents, servants, family members, representatives or any person acting under his authority from permitting or conducting the burial of the late Anne Koi Nanjala on the disputed portion of **L.R. NO. SAMIA/BUTABONA/1250**. 3. However, a careful perusal of the pleadings reveals that the intended burial is to be undertaken by Beatrice Anyango Oduori, the mother of the deceased. Indeed, the Applicant expressly deposes that the Respondent allegedly sold the disputed portion to Beatrice Anyango Oduori and that she intends to inter the deceased on the suit property. 4. The Respondent, for his part, avers that Beatrice Anyango Oduori has been in occupation of the land for close to twenty years, has extensively developed it, and that the deceased was her daughter and not his relative. He further maintains that he has no control over the intended burial arrangements. 5. From the foregoing, it is apparent that although the orders are directed against the Respondent, their practical effect would be to restrain Beatrice Anyango Oduori from burying her daughter. She is therefore the person whose proprietary and burial rights stand to be directly and substantially affected by the determination of this application. Despite that fact, she has neither been joined as a party to these proceedings nor afforded an opportunity to be heard. 6. The right to be heard is one of the cardinal principles of natural justice and is now entrenched under **Article 50(1)** of the **Constitution of Kenya, 2010**, which guarantees every person the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing. Similarly, **Article 25(c)** of the Constitution recognizes the right to a fair trial as one of the rights that shall not be limited. The rules of natural justice therefore prohibit a court from making orders that adversely affect the rights of a person who has not been made a party to the proceedings. 7. In the case of [**PASHITO HOLDINGS LIMITED & ANOTHER vs PAUL NDERITU NDUNGU & 2 OTHERS [1197] eKLR**](https://new.kenyalaw.org/akn/ke/judgment/keca/1997/423/eng%401997-11-14)the court provided that: **“According to the learned Judge, the real issue before him was: "Whether or not the Commissioner of Lands had the authority to alienate the land to the first defendant and to the three companies who subsequently sold the plots to the second defendant". Obviously, however, he could not have resolved that issue unless the Commissioner was a party to the proceedings and had a fair opportunity to be heard. It is breach of the rule of natural justice to attempt to resolve the issue behind his back and in his absence from the proceedings.”** 1. Similarly in the case of [**Ochanda Onguru T/A Ochanda Onguru & Co. Advocates v Airport View Housing Ltd [2017] KEELC 1800 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1800/eng%402017-07-31)the court provided that, “***A party cannot be condemned unheard.”*** 2. In the present case, the Applicant was fully aware before filing the application that Beatrice Anyango Oduori was the person alleged to have purchased the disputed land, was in occupation thereof, and intended to conduct the burial. Despite possessing that knowledge, the Applicant neither joined her as a party nor sought leave to enjoin her before inviting the Court to issue orders that would directly restrain her actions. 3. Granting the orders sought would therefore amount to condemning her unheard, contrary to the Constitution, the rules of natural justice and the established principles governing fair hearing. **DECLARATION AND FINAL ORDERS** 1. Accordingly, I find that the application is fatally defective for seeking orders whose inevitable effect is to adversely affect the rights and interests of Beatrice Anyango Oduori, a person who is not a party to these proceedings. 2. On that ground alone, without delving into the merits of the application or the principles governing the grant of interlocutory injunctions, I find that the Notice of Motion dated 23rd July 2026 is devoid of merit and the same is hereby dismissed with costs. **Ruling dated, signed and delivered in open Court on this 29th day of July 2026.** **C. MUGAMBI** **JUDGE** **29th JULY 2026**