https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5257

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ELCOS NO. 16 OF 2022** **JOHN MWITA MURIMI..................1ST PLAINTIFF/1ST RESPONDENT** **JOSEPH MWITA MURIMI.............2ND PLAINTIFF/2ND RESPONDENT** **NYAMOHANGA MARWA MWITA...3RD PLAINTIFF/3RD RESPONDENT** **-VERSUS-** **MWIKWABE CHACHA (**Sued/suing as Administrator of the Estate of **CHACHA MWITA MURIMI).............1ST DEFENDANT/1ST APPLICANT** **JULIUS MAGIGE MURIMI (**Sued/suing as Administrator of the Estate **of MURIMI MWITA MURIMI)............2ND DEFENDANT/2ND APPLICANT** **PANYAKO MWITA MURIMI...........3RD DEFENDANT/3RD APPLICANT** **MOTONGORI MWITA MURIMI alias JOSEPH** **MOKAMA MWITA.........................4TH RESPONDENT/4TH APPLICANT** **RULING** 1. **Background** 2. Before me is a Notice of Motion dated 20th July, 2026. It was brought under Article 159(2)(d) of the Constitution of Kenya, 2010, Order 40 of the Civil Procedure Rules, and Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21. It was filed together with a Certificate of Urgency of even date. It was supported by the Aaffidavit of **Mwikwabe Chacha Mwita**, the 1st Applicant/ 1st Defendant, which was sworn in his own behalf and, pursuant to a written authority to plead, on behalf of the 2nd, 3rd and 4th Applicants. The Applicants sought the following orders: 3. **…Spent.** 4. **…Spent.** 5. **That pending the hearing and determination of the main suit, this Honourable Court be pleased to issue a temporary injunction restraining the Respondents, whether by themselves, their agents, servants, relatives, employees, or any other person acting under their authority, from entering upon, digging, preparing a grave, conducting, or in any way proceeding with the burial of the deceased, EVERLINE PETER MWITA, on the parcel of land known as LR NO. BUGUMBE/MABERA/324 (the suit property);** 6. **That the Officer Commanding Station (OCS), Kehancha Police Station, be directed to supervise and enforce compliance with the orders of this Honourable Court; and** 7. **That the costs of the application be borne by the Respondents.** 8. Upon considering the application at the Ex Parte stage on 20th July, 2026, the Court directed the Applicants to serve the Respondents physically with the application together with the Directions. That was to be done before the close of business on 21st July, 2026. They were to provide evidence of the service by filing an Affidavit of Service thereon. 9. As per the Directions, the Respondents were to file and serve responses within four (4) days of service. The application was fixed for *inter partes* hearing on 28th July, 2026. The Court directed further that during the parties hearing, either the Area Chief or Assistant Chief of the area in which the suit land is situate attends court physically to shed light on the situation on the ground. In the interim, the Court issued an order of injunction prohibiting the Respondents, their servants, agents, relatives, employees and any other person acting under their direction or authority from interring or burying the remains of EVERLINE PETER MWITA on the suit land. The Respondents were, however, at liberty to bury the deceased on any other parcel of land belonging to them or the deceased, other than the suit land. 10. Pursuant to the said directions the Respondents filed Grounds of Opposition. By the said Grounds, the learned Counsel raised what he termed a Preliminary Objection to the Application. When the application came up for hearing on 28th July, 2026, learned Counsel for both parties elected to canvass it by way of oral submissions. In compliance with the Court's directions, the Area Chief, one Mr. Johnston Chacha Murimi, attended court. He testified on the issue touching the alleged death, on his knowledge on the parties’ position and occupation of, and, the suit land. His testimony, together with the oral submissions of Counsels, was considered in the analysis below. 11. **The Applicants' Case.** 12. The Application was supported by the Affidavit of Mwikwabe Chacha Mwita, sworn on 20th July, 2026. He deponed that he had the express authority of the 2nd, 3rd and 4th Applicants. He annexed it as "**MCM-1**". He deponed that the suit land, LR No. **Bugumbe/Mabera/324**, is registered in the joint names of the 2nd, 3rd and 4th Applicants as registered proprietors. He added that the registered owners were entitled to lawful possession of the suit property. He annexed a copy of the register (green card) and marked it as "**MCM-2**". 13. He deponed further that the Respondents had unlawfully announced and/or commenced preparations to bury on the suit land their deceased kin, Everline Peter Mwita, whose body lay at the Kenyatta Hospital Mortuary. Further, that the intended interment was going to be done without the Applicants' consent, despite a pending dispute over the ownership and occupation of the suit land. He stated that the burial was scheduled to take place on 20th July, 2026, or in the course of that month or the next. 14. He deponed that unless restrained, the Respondents were likely to proceed with the burial before the dispute was fully heard and determined. Further, this act would render the suit nugatory. He added that a burial on the suit property would fundamentally alter the character and status of the land. It would occasion irreparable harm not capable of adequate compensation by an award of damages. He deponed that the deceased was neither born nor did she grow up on the suit land. He urged that the Applicants had established a prima facie case with a probability of success. Also, that the balance of convenience tilted in favour of preserving the suit property. Further, it was in the interest of justice that the status quo be maintained pending determination of the dispute. 15. **The Respondents' Case.** 16. The Respondents did not file a Replying Affidavit. Instead, they filed Grounds of Opposition and raising a Preliminary Objection on three grounds. First, they contended the application was frivolous and speculative as it disclosed no evidence of which relative of the Respondents had died or was intended to be buried on the suit land. Second, no evidence of the death of any person had been placed before the Court. Third, that the application was founded on malice and ill will on the part of the Applicants. 17. Learned Counsel for the Respondents did not file written submissions. However, the application and objection were canvassed orally on 28th July, 2026. He reiterated the three grounds set out in the Grounds of Opposition. He urged the Court to strike out and/or dismiss the application with costs. 18. Pursuant to the Court's directions that the Area Chief attends court, one Mr. Johnston Chacha Murimi, did so. He testified under oath. He stated that he knew both the Plaintiffs and the Defendants. They resided in Nyanchabe Sub-Location, Mazewara village of Bugumbe Central Location. He also knew the suit parcel whose number he gave as LR No. **Bugumbe/Mabera/324**. Further, that it was formerly owned by Chacha Mwita, Murimi Mwita, Peter Panyako and Joseph Mukama *alias* Mutongori. 19. He added that the person who was said to have lost a child was the son of one Peter Mwita, one of the Defendants. He was said to have lost a daughter in Nairobi. Also, that the father to the said son was Joseph Mwita, the 2nd Respondent. He added that on 13th July, 2026 there was wailing from the plaintiffs’ home. Upon inquiry as to what had happened he was informed of the death. He stated that he had never seen the deceased daughter alleged to have died. He testified that the family held a *harambee* (fundraiser) on 18th July, 2026 towards offsetting the funeral expenses. He too participated in it as a community member. 20. He further testified that upon receiving the Court's directions, he delivered them to the Respondents. Further, that since then he had not heard of any further activity on the ground. 21. He also testified that the Respondents occupied about two acres of the suit parcel while the Applicants occupied the rest of the land. Further, the Respondents and the Applicants had no blood relation. They were only neighbours, but he knew both families well. The Respondents had only indicated that a relative of the family had passed on. That to his knowledge, none of the Respondent’s members of the nuclear family had died. 22. On cross-examination, he reiterated that he knew the Plaintiffs. They were not related to the Applicants. He testified that he had come to learn that the Respondents had been given about two acres to reside on pending their acquisition of alternative land. He stated that he knew the Respondents’ families and grandchildren, though not all of them. 23. Lastly, he testified that he knew the Applicants well and that the Applicants had resided on the suit land since he (*the Chief*) was born. He testified that the Applicants were the owners of the land. He stated that there is a layout plan filed in court. That the survey exercise on the ground is not yet complete. He stated that he was not a surveyor. He could not therefore, tell exactly how much land each party occupied. 24. **Issues for Determination** 25. Having considered the Notice of Motion, the Supporting Affidavit, the Grounds of Opposition, the law and the oral submissions of Counsel, and the testimony of the Area Chief, the following issues arise for determination: 26. Whether the Preliminary Objection by the Respondents is merited; 27. Whether the Application satisfiess the threshold for grant of an order of injunction; 28. Whether the OCS Kehancha Police Station should provide security for the enforcement of the orders herein; and 29. Who bears the costs of the application. 30. **Analysis And Determination** 31. I address the issues in sequence, beginning with the first one which, if successful, would determine the application. 32. ***Whether the Preliminary Objection is merited*** 33. It is trite law, as settled in the celebrated case of **Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696,** that a preliminary objection consists of a pure point of law argued on the assumption that the facts pleaded by the other side are correct. It cannot be raised properly where any fact has to be ascertained, or where it depends, for its validity, upon the exercise of judicial discretion on the facts of the case. This principle was affirmed and elaborated upon in [**Oraro v Mbaja [2005] KEHC 3182 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2005/3182/eng%402005-02-04)where Ojwang J (*as he then was*) held that, “*a preliminary objection, correctly understood, is a point of law which must not be blurred with factual details liable to be contested, and that an objection bearing factual aspects calling for proof, or seeking to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed.”* 34. I now analyze the three grounds relied upon by the Respondents as against the prism of a preliminary objection. The grounds are, namely, that the application is speculative for want of evidence of the identity of the deceased, that no evidence of any death was tendered and that the application is actuated by malice. When looked at on their face, each of the grounds constitute matters of fact and not pure points of law. Their resolution requires the ascertainment of facts. Interestingly, the Court proceeded to ascertain their veracity through the testimony of the Area Chief who was an independent witness, with no discernible interest in the outcome of the proceedings. 35. In the premises, the Preliminary Objection, properly understood, does not raise a pure point of law. It cannot be sustained as such. It accordingly fails and is hereby dismissed. I am fortified, in my determination of the injunction below, by taking into account the substance of the concerns raised by the Respondents, and the further principle that a statement of grounds of opposition addresses only issues of law and cannot properly be used to controvert facts deposed to in an affidavit. That function is reserved for a Replying Affidavit in answer. In [**KENNEDY OTIENO ODIYO & 12 OTHERS v KENYA ELECTRICITY GENERATING COMPANY LIMITED [2010] KEHC 282 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2010/282/eng%402010-07-30)**,** the court held that, “*Grounds of Opposition are general averments which do not respond to or rebut the issues raised in a Supporting Affidavit, and that in the absence of a Replying Affidavit controverting those averments, they must be taken to be true*”. The Respondents herein elected to file Grounds of Opposition and not a Replying Affidavit. The factual averments in the Applicants' Supporting Affidavit therefore stand uncontroverted, a position reinforced, rather than displaced, by the independent testimony of the Area Chief. 36. In the premises, the Preliminary Objection, properly understood, does not raise a pure point of law. It accordingly fails and is hereby dismissed. I nonetheless take into account, in my determination of the injunction below, the substance of the concerns raised by the Respondents to confirm whether they contain any merits the absence of an answer thereto notwithstanding. 37. ***Whether the Applicants have met the threshold for grant of a temporary injunction*** 38. The law on temporary injunctions is codified under Order 40 of the Civil Procedure Rules. The applicable principles were settled in **Giella v Cassman Brown & Co. Ltd [1973] EA 358**, where the Court held: *"First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide the application on the balance of convenience.* 1. On the meaning of a prima facie case, the Court of Appeal in **Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR)** held; “ *It is not one which must succeed at trial, but one which, on the material placed before the court, discloses that a right has apparently been infringed, calling for an explanation or rebuttal, and which raises a triable issue meriting further inquiry, without the court resolving at that stage the conflicting claims of fact or law falling for determination at the full hearing*.” 2. On this first limb, the register annexed by the Applicants shows the suit land was registered, since 1973, in the names of persons whom the 2nd, 3rd and 4th Applicants represent. This is confirmed by the oral evidence of the Area Chief who testified that to his knowledge the suit land belonged to the Applicants, and they had resided on it since his birth. The witness, although admittedly not a surveyor, testified that the Respondents occupied only about two acres of the parcel and that this was given to them to reside on pending their acquisition of alternative land, a fact which suggests occupation short of ownership. He testified further, and his evidence was not shaken in cross-examination, that the Respondents and the Applicants had no blood relationship: they were neighbours only. 3. The Area Chief's testimony has, in my considered view, comprehensively answered the substance of the Respondents' objection. He confirmed, without equivocation, that the Respondents’ actions on the 13th July 2026 and 18th July 2026demonstrated that indeed a death did in fact occur. It was said to be that of a daughter of the son of Peter Mwita of the family of Joseph Mwita: first, there was wailing on 13th July, 2026 from the said family, secondly, the family conducted a *harambee* (fundraiser) on 18th July, 2026 in preparation for the burial. This is independent and credible evidence that the reported death is not a fabrication. 4. This is significant factual information for it undercuts any suggestion that the Respondents hold a customary or familial right to inter their kin on land belonging to a different and unrelated family. It is also uncontroverted that the deceased was neither born nor did she grow up on the suit land. Further, the Respondent’s argument that the application was speculative or that there was no confirmation of who had died is mere denial. In any event as I have found above there was no affidavit response to controvert the applicant’s depositions. 5. It is on these facts that I am satisfied that the Applicants have established a prima facie case that they are entitled to the protection of their proprietary rights over the suit land, and to resist its use for a burial to which they have not consented, pending determination of the extent, if any, of the Respondents' occupation rights in the main suit. 6. On irreparable harm, the Court of Appeal in **Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR)** held that irreparable injury does not connote injury that is physically impossible to repair, but injury that cannot be adequately compensated by an award of damages, whether because it is incapable of being quantified in monetary terms, or because, even if quantified, damages would not be a sufficient remedy in the circumstances, and that this limb must be established independently of a strong prima facie case. 7. I am of the humble view that a burial is, by its very nature, intended to be a final rite and irreversible, except by orders of a Court and even so, it involves a lot of technical and expert assistance to be carried out. Once conducted, it cannot be undone easily by an award of damages for it creates emotional and personal attachment to the place where the deceased is laid to rest. In my view, if it is done on the suit land it would permanently alter its character and status, particularly where, as here, a genuine dispute over its ownership and occupation is pending before the Court. I am satisfied that the Applicants have demonstrated a real risk of irreparable harm that cannot adequately be compensated in damages, should the status quo not be preserved. 8. On the balance of convenience, the Court in **Amir Suleiman v Amboseli Resort Limited [2004] KEHC 2624 (KLR)** held that this limb requires the court to weigh the hardship the Applicant would suffer if the injunction is refused and he ultimately succeeds at trial, against the hardship the Respondent would suffer if it is granted and he ultimately succeeds and to adopt the course carrying the lower risk of injustice. On this last limb, I bear in mind that the order already made, and which the Applicants seek to have confirmed, does not bar the Respondents from burying their kin altogether. It only restrains burial on the specific suit land, leaving them with the liberty to inter the deceased on any other parcel belonging to them or the deceased or other lawful different place. 9. The evidence of the Area Chief that no further activity has been reported on the ground since the directions were served suggests that compliance with this limited restriction occasioned no undue hardship. Against this background, I find that the prejudice to the Applicants in the event of a burial proceeding on suit land whose ownership and occupation are the subject of this live dispute, and to which the Respondents' asserted family connection is, on the Chief's evidence, unproven, would be be detrimental. The balance of convenience therefore tilts in favour of preserving the suit property pending determination of the main suit. 10. I do not go so far as to make any finding on the precise nature or extent of the Respondents' occupation of the two acres referred to by the Area Chief. Whether they be licensees or otherwise adverse occupiers is a matter properly reserved for the hearing of the main suit and not to be resolved at this interlocutory stage. 11. Accordingly, I find that the Applicants have met the threshold for grant of an order of temporary injunction pending the hearing and final determination of the main suit. The interim order issued on 20th July, 2026 is hereby confirmed until the hearing and determination of this suit. 12. ***The order directed at the OCS Kehancha Police Station*** 13. Given the factual information about the reported wailing, the conducting of a *harambee* in preparation for the burial and the general risk of a breach of peace should either party act contrary to and in the face of a subsisting court order, it remains necessary and proportionate that the order directing the OCS Kehancha Police Station to provide security in the enforcement of these orders be maintained. It is directed that the officer, upon being requested for the assistance to enforce the order acts accordingly in a swift manner while respecting the human rights of anyone involved. 14. ***Costs*** 15. Costs ordinarily follow the event, but this being an interlocutory application whose outcome is tied to the substantive dispute between the parties over the suit land, and given that he parties involved are, for now neighbours, and the Respondents are in mourning, though they tried to mislead the court about it, this court wishes not to see the latter in more pain than naturally necessary. Thus, each party shall bear their own costs of the application. 16. For the foregoing reasons, I make the following orders: 17. The instant application succeeds. 18. The order of temporary injunction issued on 20th July, 2026, restraining the Respondents, whether by themselves, their agents, servants, relatives, employees, or any other person acting under their direction or authority, from entering upon, digging, preparing a grave, conducting, or in any way proceeding with the burial of the deceased, EVERLINE PETER MWITA (or other deceased currently not inferred), on the suit land known as LR NO. **BUGUMBE/MABERA/324**, is hereby confirmed and shall remain in force pending the hearing and final determination of the main suit. 19. For the avoidance of doubt, this order does not prohibit the parties from burying the remains of the deceased on any other parcel of land, other than the suit land, belonging to them or the deceased, near or far from the suit land, or on any other lawful place. 20. The OCS Kehancha Police Station shall provide security in the enforcement of these orders as and when called upon to so do. 21. This matter is once more reserved for Ruling on 27th October 2026 on the other application which had already been fixed for the said date. 22. It is so ordered. **Ruling Dated, Signed and Delivered virtually via the Teams Platform this 5th day of August, 2026**. **HON. DR. IUR NYAGAKA,** **JUDGE** **In the presence of,** Kerario Marwa Advocate for the Applicants (online) Applicants present in open court Owino Advocate for the Respondents (online)