https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4840

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT SIAYA** **ELC SUIT. ELCOS E002 OF 2026** **GEORGE SAMUEL OKOTH OBATH…………………………. PLAINTIFF/APPLICANT** **AND** **ROSE OTIANGA…………………………………………… DEFENDANT/RESPONDENT** **RULING** 1. What is before this Court is a Notice of Motion application dated 19th April, 2026. The application seeks the following orders; - 2. THAT pending hearing inter parties, this Honourable court be pleased to issue an injunction restraining the Defendant/Respondent from further encroaching, trespassing or interfering with the Plaintiff’s land parcel No. NORTH GEM/MALUNGA/1356. 3. THAT pending the hearing and determination of this suit, an order of temporary injunction does issue restraining the Defendant/Respondent from further interference with the suit property. 4. THAT this Honourable court be pleased to order maintenance of status quo on the suit property. 5. THAT pending hearing and determination of this suit, this Honourable court be pleased to issue a mandatory compelling the Defendant/Respondent to facilitate the exhumation and removal of the remains of the deceased from the suit property under supervision of the relevant authorities. 6. THAT the costs of this Application be awarded. 2 The Plaintiff/Applicant vide his supporting affidavit sworn on 19th April,2026 avers that he is the registered proprietor of land parcel No. NORTH/GEM/MALUNGA/1356. 3 That the Defendant/Respondent and her deceased husband have, over time unlawfully encroached onto portions of his land without his consent. 4 That the said encroachment has been gradual and continuous depriving him of use and quiet possession of parts of his land. 5 That the said parcel of land forming part suit property and encroached by the deceased and the Defendant/Respondent measures approximately 1.04Ha. 6 That he has on several occasions objected to the said encroachment and demanded that the Defendant/Respondent vacates his land but the Defendant/Respondent has refused and/or ignored the same and instead continues to encroach it. 7 Prior to the burial of the deceased, the late John Otiang Owino (spouse to the Defendant/Respondent), the Plaintiff/Applicant learned of the Defendant’s/Respondent’s intention to bury the deceased on the suit property. 8 The Plaintiff/Applicant didn’t consent to the said burial and immediately moved to court seeking orders to restrain the same. 9 Despite the existence of the said application and the Plaintiff/Applicant’s clear objection, the Defendant/Respondent proceeded to bury the deceased on the suit property. 10 By the time the said application came up for hearing, the burial had already taken place and the application was dismissed for having being overtaken by events. 11 The burial of the deceased was done without consent and in disregard of my proprietary rights and in the face of an existing dispute. 12 That the grave of the deceased is currently situated on my land and continues to interfere with the Defendant/Respondents use and enjoyment of the suit property. 13 That the Plaintiff/Applicant has made efforts to have the Defendant/Respondent remove the remains from my land amicably but the Defendant/Respondent has refused and/or neglected to do so. 14 The Plaintiff/Applicant avers that the continued presence of the grave and other structures constitutes a continuing act of trespass. **SUBMISSIONS** 15 Directions were issued for the application to be determined by way of written submissions. However, no submissions were filed by the parties by 24/7/2026 when this court sat to prepare this ruling. The court will however proceed without the benefit of the same. **ANALYSIS AND DETERMINATION** 16 I have carefully considered the Notice of Motion application, the Supporting Affidavit sworn by the Plaintiff/Applicant and the annexures thereto. The following issues commend determination: 1. Whether the Plaintiff/Applicant has met the requisite conditions to warrant the granting of temporary injunction. 2. Whether the Court ought to grant a mandatory injunction compelling the exhumation and removal of the deceased's remains prior to the full hearing and determination of the main suit. 3. Who bears the costs of the Application? 17 The Plaintiff/Applicant seeks an injunction pending the hearing and determination of this suit. The principles applicable in an application for an injunction were laid down in the celebrated case of ***Giella vs Cassman Brown & Co Ltd 1973 EA 358*** as follows: - 1. ***First, the Plaintiff/Applicant must show a prima facie case with a probability of success.*** 2. ***Secondly, an interlocutory injunction will not normally be granted unless the Plaintiff/Applicant might otherwise suffer irreparable harm which would not be adequately compensated by an award of damages.*** 3. ***Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.*** 18 Thus, the first question this court ought to ask is whether the Plaintiff/Applicant has established a prima facie case. A prima facie case was defined by the Court of Appeal in ***Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others [2003] KLR 125***. ***“A prima facie case in a civil application includes but is not confined to a genuine and arguable case”. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently*** ***been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”*** 19 The Plaintiff/Applicant has attached copies of the Title Deed for land parcel No**. NORTH GEM/MALUNGA/1356,** proving registered ownership, along with a surveyor’s report on **NORTH GEM/MALUNGA/1356 Vs 182 and 1573** dated 4th August, 2021 confirming the alleged Defendant/Respondent encroachment on the Plaintiff/Applicant suit property. In the absence of any rebuttal from the Respondents, I am satisfied that the Plaintiff/Applicant has established a prima facie case with a probability of success. 20 The second requirement to be demonstrated is that of irreparable loss should the orders not be granted. In ***Paul Gitonga Wanjau vs Gathuthi Tea Factory Company Ltd & 2 Others [2016] eKLR*** the court citied Halsbury’s Laws of England on what irreparable loss is and stated that: - “***First, that the injury is irreparable and second, that it is continuous. By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages.”*** 21 Applying the above to the present case, the annextures on record specifically the photographs substantiate that the Defendant/Respondent has interred the remains of her late husband on the suit land. This continuous and permanent disturbance to the Applicant's proprietary rights generates injury of a nature that cannot be adequately quantified, compensated or restored through an award of damages, as the resulting degradation and waste to the suit land constitutes an irreparable loss. 22 However it is important to note there is need to distinguish the two instances of encroachment. Firstly, is the one of the graves which I have already noted above and which then warrants the preservation of the suit property to avoid further burials though I would not wish for more deaths but men are mere mortals. Preservation of the disputed subject is the very objective of the provisions of Order 40. 23 Secondly is the fact that the entry and encroachment is stated to have been ongoing for a period of time. The question that arises is if orders restraining the Defendant/Respondent from further entering upon, Land Parcel No. **NORTH GEM/MALUNGA/1356** can issue. I say so because the entry has already occurred and indeed the court cannot injunct that which has already happened. 24 However the uncontroverted evidence on record establishes that withholding injunctive relief would continuously expose the suit property to ongoing interference, encroachment and further unauthorized developments surrounding the newly established grave, thereby altering the parcels character to the Applicant/Plaintiff’s detriment. The courts intervention would then be to ensure that the status quo remains as it is to ensure that the situation does not degenerate further including the expansion of the alleged encroached area and disposition as the matter awaits determination on merit. 25 The above speaks therefore to considering the matter from the balance of convenience and which entails maintaining the status quo. 26 In the case of ***Pius Kipchirchir Kogo vs Frank Kimeli Tenai [2018] eKLR***, the court in dealing with the issue on balance of convenience held as follows: ***“The meaning of balance of convenience in favour of the plaintiff is that if the injunction is not granted and the suit is ultimately decided in favour of the plaintiffs, the inconvenience to the plaintiff would be greater than that which would be caused to the Defendant/Respondents if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the Defendant/Respondents. Should the inconvenience be equal, it is the plaintiffs who suffer? In other words, the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it.”*** 27 The concept of status quo has been subject of may judicial pronouncements. Orders of status quo need not necessarily be prayed by the parties but can be given by the court based on the circumstances of a suit and under its general jurisdiction. This was outlined in the case of **Thugi River Estate Limited & another Vs National Bank of Kenya Limited & 3 others [2015] eKLR** ***“Firstly, an order of status quo will issue through a judicial process. Where the court in exercise of its general or statutory jurisdiction grants orders for maintenance in situ of a particular state or set of facts… the second or alternative order for status quo is the one issued by the court as a case management strategy. It is issued to provide assistance to the case. It also maintains a particular state of affairs or set of facts. Unlike a conservatory order or injunctive order, it is not descriptive. It is originated either by the court or by the consent of the parties. Often the court would not have been moved by either party. The court then expects an existing state of affairs or facts be preserved until a particular occurrence or until the courts’ further orders. It is intended to also freeze the state of affairs.’*** 28 Regarding Prayer (4) of the Application seeking a mandatory injunction to compel the exhumation and removal of the remains of the deceased prior to the full hearing and trial of the main suit, this Court shall exercise caution. 29 Furthermore, it is a cardinal principle of procedure that a court ought not to grant an interlocutory order that effectively determines the main suit or grants the ultimate reliefs sought in the Plaint before the parties have been heard on the merits. 30 The proper role of the court at the interlocutory stage is not to decide final issues of fact or grant final relief, but to preserve the subject matter of the dispute until a full trial can be conducted. The court draws guidance from ***Kenya Power & Lighting Co. Limited v Sheriff Molana Habib [2018] eKLR* where** the courtpronounced itself as follows with regard to what constitutes a permanent injunction; - ***“A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the defendant in order for the rights of the plaintiff to be protected”.*** 31 While the Applicant has established a strong prima facie case regarding proprietary title, ordering the exhumation and removal of the deceased's remains at this preliminary stage would amount to granting a permanent and irreversible remedy one that properly belongs to the determination of the main suit after the evaluation of oral and documentary evidence. To order exhumation now would effectively pre determine a central relief in the Plaint without giving the parties a full hearing. 32 Consequently, while the Court is inclined to protect the suit property from further waste or unauthorized development through a prohibitory injunction and an order of status quo, I find that the prayer for an interlocutory mandatory order of exhumation is premature. The question of whether the remains of the deceased should be exhumed must abide by the full trial and final judgment in the main suit. 33 The Plaintiff/Applicant’s Notice of Motion application dated 19th April, 2026 is determined in the following terms;- 1. THAT pending the hearing and determination of this suit, an order of status quo hereby issues against the Defendant/Respondent, whether by herself, her servants, agents, relatives, employees, or anyone acting under her direction or authority, from expanding the current area of their occupation as delineated in the survey report on **NORTH GEM/MALUNGA/1356 Vs 182 and 1573** dated 4th August, 2021. 2. THAT an order for the maintenance of the status quo on Land Parcel No. **NORTH GEM/MALUNGA/1356** and the occupied area as described in 1) above be and is hereby issued, freezing the suit property in its present condition and strictly prohibiting any further physical alterations, structures or developments on or around the burial site by the defendant whether by herself, her servants, agents, relatives, employees, or anyone acting under her direction or authority, 3. THAT Prayer (4) of the Notice of Motion seeking a mandatory injunction compelling the exhumation and removal of the remains of the deceased prior to trial is hereby declined. 4. THAT the costs of this application shall abide the outcome of the main suit. It is so ordered **Dated at Siaya this 27th Day of July 2026** **HON. JUSTICE A. E. DENA** **JUDGE** **27/07/2026** **Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of:** M/S Nyaboro holding brief for Ntabo for Applicant N/A for the Respondents Court assistant: Abiud Wekesa