https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3787

Mukite & another v Wakhungu & another (Environment and Land Appeal E016 of 2026) [2026] KEELC 3787 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEELC 3787 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Environment and Land Appeal E016 of 2026 AK Bor, J June 3, 2026 Between Joseph Khaemba Mukite 1st Appellant Beatrice Sikuku 2nd Appellant and Peter Wekesa Wakhungu 1st Respondent Gideon Wanjala Sindani 2nd Respondent Ruling 1.The Appellant filed the application dated 30/4/2026 seeking stay of execution of the ruling delivered on 24/4/2026 by the Learned Magistrate in Webuye SPM CCC No. E110/2026 and in particular the orders restraining the release of the body of the late Martin Sikuku Mukite from St. Bakhita Hospital Mortuary and restraining the Appellants from burying him on the land known as Ndivisi/Ndivisi/2404. They sought stay of proceedings in Webuye SPM CCC No. 110 of 2026 pending hearing and determination of the intended appeal. In addition, they sought to have the orders granted on 2/4/2026 and confirmed on 24/4/2026 discharged and vacated. They also sought to have this court direct the immediate release of the remains of the late Martin Sikuku Mukite from St. Bakhita Hospital Mortuary to the 2nd Appellant and the immediate family for burial on the suit land pending hearing and determination of the appeal. 2.The application was made on the grounds that the body of the late Martin Sikuku Mukite has been lying at St. Bakhita Hospital Mortuary since 26/3/2026 and that mortuary fees of Kshs. 1,000/= per day were accruing daily as the family of the late Martin continued to suffer irreparable, emotional, psychological, spiritual and cultural harm because they were unable to bury their kin in accordance with their customs and religious beliefs. They urged that any further delay would render the appeal nugatory because the continued restraint on the burial was causing harm that could not be compensated by an award of damages. They urged that the appeal, which they have lodged, had high chances of success and that the burial of the late Martin would not transfer title or affect any legal right that the Respondents may eventually prove over the landon appeal. 3.Joseph Khaemba Mukite swore the affidavit in support of the application and exhibited copies of the admission form for his late brother Martin at St. Bakhita Hospital Mortuary. At the time he swore the affidavit, the mortuary fees were estimated to be Kshs. 30,000/=. He averred that the continued detention of his late brother’s body had caused and continued to cause immense emotional, psychological, spiritual and cultural distress to the family especially his widow who is the 2nd Appellant. 4.He urged that the rulings of the court delivered on 17th and 24th April, 2026 in Webuye CMCC in No. E110 of 2026 restrained the release of the body of his late brother for burial on the suit land. He urged that the rulings were legally flawed for the reasons set out in the memorandum of appeal including lack of jurisdiction, res judicata, sub judice, wrong application of Section 26 of Land Registration Act and failure to give effect to Section 28 which recognizes customary trust as an overriding interest. 5.Mr. Joseph Mukite deponed that the Respondent’s title over the suit land had been declared null and void and that it was held in trust for all the beneficiaries in Webuye MCELC No. 23 of 2019. He annexed a copy of the judgment. He maintained that his family’s customary trust in the suit land had been declared judicially in Webuye MCELC No. 23 of 2019. 6.Mr. Mukite averred that the Respondents did not object to three previous burials of their family members on the same land and that they were therefore estopped from selectively challenging this burial. He stated that he was willing to provide such security for the due performance of any decree or order as this court may order. 7.Gideon Wanjala Sindano, the 2nd Respondent swore the replying affidavit in opposition to the application. He averred that the 1st applicant was a paternal uncle to the Respondents while the 2nd Appellant was the wife of their late uncle Martin Mukite. He stated that the suit land was registered in their late father’s name, Charles Wakhungu Mukite. He explained that the Respondents were the administrators of their late father’s estate and deponed that he and the 1st Respondent filed Webuye ELC Case No. 23 of 2019 seeking the eviction of the 1st Appellant and the late Martin and that being aggrieved by the decision of the Learned Magistrate, they filed Bungoma ELC Land Appeal No. E042 of 2024 which is still pending in court. 8.He went further to explain that the late Martin obtained grant of letters of administration intestate fraudulently yet grant of letters had previously been issued to the Respondents. When Martin died on 26/3/2026, the Respondent filed Webuye SPMCC No. E110 of 2026 seeking orders that the late Martin should not be buried on the suit land. The Appellant filed a preliminary objection on the point that the Learned Magistrate lacked jurisdiction to hear and determine that matter because the issues raised were a preserve of the Environment and Land Court and that the matter was res judicata having been heard and determined in Webuye SPMELC Case E23 of 2019. He exhibited a copy of the ruling vide which the Learned Magistrate dismissed the preliminary objection. 9.He averred that Webuye SPMELC No. E110 OF 2026 was not res judicata because it was based on the issue of burial while Nairobi High Court Succession Cause No. 791 of 2009 and Webuye Succession Cause No. E058 of 2024 raised different issues. 10.The Respondents urged that this appeal should have been filed before the High Court and not the ELC. He denied that the court had found in Webuye SPMELC Case No. 23 of 2019 that the registration of his late father was null and void. He added that the Appellants were misleading the court yet the finding by the magistrate’s court was that the Respondent’s father held the suit land in trust for the family. He pointed out that the burial dispute had been referred to mediation by the court and was coming up for mention on 2/6/2026. 11.The 2nd Respondent averred that the 1st Appellant, the late Martin and the Respondent’s father had a dispute over the suit land and after their father died, the sons took over the dispute. He maintained that it would be prejudicial if the remains of the late Martin were buried on the suit land yet there was an appeal pending determination before the ELC. He clarified that they were not opposing the release of the remains of the late Martin as long as he was buried at an alternative place. He argued that Webuye SPMCCC No. 110 of 2026 should not be stayed because that was the case which would determine the burial issue between the parties. 12.Mr. Sindani exhibited copies of the title deeds, grant of letters of administration issued to the Respondents, grant of letters of administration issued to Martin Mukite and the proceedings before the magistrate’s court. 13.The 1st Appellant swore a further affidavit where he deponed that his brother’s body was actively decaying and had deteriorated significantly. Further, that the 2nd Appellant, the widow of the late martin was a peasant farmer without the means to pay the mortuary fees which were already in excess of Kshs. 50,000/=. He maintained that this court had jurisdiction because in essence the dispute was a land dispute. 14.The application and preliminary objection were canvassed through written submissions. The Appellants submitted that the Respondents were the sons of the late Charles Mukite who was the elder brother of the late Martin and the 1st Appellant. They claimed that the suit land was ancestral land that belonged to the Munyefu family. They urged that substantial loss had occurred and continued to occur to the remains of the late Martin. Further, that the widow and her children were suffering emotional and psychological loss from the trauma of being unable to bury their kin with dignity. 15.Additionally, that they stood to suffer cultural and spiritual loss by being denied to bury their kin on ancestral land in violation of Bukusu customs. They added that they continued to suffer loss as the mortuary fees accrued each passing day while guests continued streaming into the home each day for mourning. They urged that they filed the application without delay and that they had an arguable appeal. They went further to argue that the balance of convenience favoured them and that the harm could not be compensated by damages. Further, that land was recognized as ancestral land and was held in trust for the rest of the family and should be the burial ground for the late Martin. 16.The Respondents argued that this court lacked jurisdiction to hear and determine this matter, which is a burial dispute over the burial of the late Martin on a disputed land. They urged that the Appellants should have appealed against the ruling delivered on 17/4/2026 when the court dismissed their preliminary objection instead of waiting for the matter to proceed for hearing. They urged that the dispute was over burial and was not the preserve of the ELC. 17.Regarding the application for stay, the Respondents submitted that stay of proceedings was a drastic remedy that should only be granted in exceptional circumstances. Further, that the Appellants should have lodged an appeal when the magistrate’s court delivered its ruling on the preliminary objection. They pointed out that the judgment in Webuye ELC Case No. 23 of 2019 indicated that the 1st Appellant and the late Martin were to move the appropriate court for cancellation of title because the magistrate’s court lacked jurisdiction to do so. 18.They added that the suit land was registered in the name of Charles Mukite who died in 2008 and that the only way the title over a dead person could be altered was through succession proceedings and not cancellation of the title. They reiterated that they did not have any issue with the release of the body of the late Martin as long as the Appellants found an alternative place to bury him because the suit land is the subject to litigation. They urged that the purpose of the orders that were granted in Webuye SPM CCC No. 110 of 2026 was to preserve the subject matter pending trial. They urged the court to dismiss the application with costs. 19.The issue for determination is whether the court should uphold the preliminary objection and whether it should grant the orders in the application dated 30/4/2026. 20.This court has jurisdiction to hear and determine this matter. The dispute is over the burial site for the late Martin, the Respondents are opposed to his burial proceeding on the suit land before the land ownership dispute is resolved. The burial dispute cannot be severed from the dispute over ownership of the suit land. The preliminary objection is dismissed with costs to the Appellants. 21.It is apparent from the averments and submissions made that the parties are related and that there have been previous court proceedings over ownership of the suit land. It emerged that wo courts separately issued grant of letters of administration to the Respondents and the late Martin over the estate of the Respondents’ father, the late Charles Wakhungu Mukite. The late Charles and the late Martin were brothers. It is also apparent that there is an appeal lodged in this court challenging the finding by a Webuye Court that the late Charles held the suit land in trust for his brothers. 22.The fact that the late Martin lived on the suit land and buried his other relatives on the same land was not controverted by the Respondents. It is clear that the bad blood between the Appellants and the Respondents is what made the Respondents object to the release of the remains of the late Martin for interment on the suit land. As the Learned Magistrate observed in the Webuye case, this is the kind of dispute that ideally should be resolved by the wider family of the Appellants and Respondents in the spirit of honouring their departed relative with a prompt and dignified burial in line with their Bukusu culture and rites. 23.The court is satisfied that the Appellants have made a case for stay of execution of the orders issued by the Learned Magistrate in the ruling delivered on 24/4/2026 in Webuye SPM CCC No. E110/2026 and in particular the orders restraining the release of the body of the late Martin Sikuku Mukite from St. Bakhita Hospital Mortuary and restraining the Appellants from burying him on the land known as Ndivisi/Ndivisi/2404. The loss that the Respondents may suffer from the burial of the late Martin on the suit land can be quantified and paid by the Appellants and does not outweigh the loss and anguish the appellants are suffering as a result of the restraint of the burial of the late Martin. 24.The court grants prayers 4, 5, 6 and 7 of the application dated 30/4/2026 on condition that the Appellants give an undertaking as to damages in the event that the court ultimately finds that the suit land belongs to the Respondents and the late Martin Sikuku Mukite should not have been buried on the suit land. The undertaking is to be filed within 7 days of today. The costs of the application shall abide the outcome of the appeal. DELIVERED VIRTUALLY AT BUNGOMA THIS 3RD DAY OF JUNE 2026.K. BORJUDGEIn the Presence of:-Ms. Gwehona Imali for the AppellantsMr. Peter W. Wakhungu and Mr. Gideon W. Sindani- the RespondentsCourt Assistants –Josephat Bett/Metrine