[2023] KEHC 19100 (KLR)
The court found that the appeal was at its final stages and the ownership of the suit land was in dispute. To prevent prejudice and preserve the substratum of the appeal, it was necessary to grant a temporary injunction restraining the burial of the respondent on the disputed parcel of land. The absence of a...
Source-derived case information.
- Citation
- [2023] KEHC 19100 (KLR)
- Parties
- Applicant: Lydia Wambura (Suing on Behalf of the Estate of James Munyiri Karaya); Respondent: Gladys Muthoni
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 43 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Injunction Application
- Outcome
- Application allowed; temporary injunction granted.
- Judges
- EM Muriithi
- Legal Topics
- Interlocutory Injunctions, Burial Disputes, Ownership Contestation, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lydia Wambura (Suing on Behalf of the Estate of James Munyiri Karaya)
Applicant
Gladys Muthoni
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether a temporary injunction should issue to restrain the burial of the respondent on the disputed parcel of land pending determination of the appeal.
- 2 Whether the applicant, as legal representative of the deceased estate, has established a prima facie case for preservation of the suit property.
Ratio Decidendi
The court found that the appeal was at its final stages and the ownership of the suit land was in dispute. To prevent prejudice and preserve the substratum of the appeal, it was necessary to grant a temporary injunction restraining the burial of the respondent on the disputed parcel of land. The absence of a response from the respondent further supported the applicant's case. The court exercised its discretion to maintain the status quo pending the outcome of the appeal, ensuring that the rights of the parties and the subject matter of the litigation were protected.
Court Disposition
Application allowed; temporary injunction granted.
Orders
- A temporary injunction is issued restraining the defendant’s agents, servants, family members, employees or anybody working at her behest from burying the remains of the respondent on parcel number L.R no Plot no Ex-lewa 668 pending the hearing and determination of Meru Civil Appeal no 43 of 2008.
- The costs of the application shall abide the outcome of the appeal.
Full Case Text
Judgment text and source record
20 paragraphs
Wambura (Suing on Behalf of the Estate of James Munyiri Karaya) v Muthoni (Civil Appeal 43 of 2008) [2023] KEHC 19100 (KLR) (26 June 2023) (Ruling)
Neutral citation: [2023] KEHC 19100 (KLR)
Republic of Kenya
In the High Court at Meru
Civil Appeal 43 of 2008
EM Muriithi, J
June 26, 2023
Between
Lydia Wambura (Suing on Behalf of the Estate of James Munyiri Karaya)
Applicant
and
Gladys Muthoni
Respondent
Ruling
1. By a Notice of Motion under certificate of urgency dated 17/5/2023 brought under Order 40 Rule 1 of the Civil Procedure Rules, Sections 1,1A,1B,3,3A and 63(e) of the Civil Procedure Act, and any enabling provision of the law, applicant seeks that:1. Spent2. Spent3. This Honorable Court be pleased to issue orders of temporary injunction restraining the defendant’s agents, servants, family members, employees or anybody working at her behest from burying the remains of the respondent on parcel number L.R no Plot no Ex-lewa 668 pending the hearing and determination of the respondent’s appeal to wit Meru Civil Appeal no 43 of 2008. 4.The orders sought herein be served upon the O.C.S Subuiga police station for strict compliance.5. This Honorable Court be pleased to issue such further orders to meet the ends of justice.6. The costs of this application be met by the respondent.
2. In her supporting affidavit sworn on even date, the applicant avers that she is the wife and the legal representative of the estate of the deceased herein James Munyiri Karaya, who was the sole registered owner of L.R no Plot no Ex-lewa 668 (henceforth called the suit land). On or about the year 2014, the respondent was involved in fraudulent dealings in relation to the aforestated parcel of land. After the death of the respondent, her son now secretly intends to inter his mother, a trespasser and a stranger to her family members and the beneficiaries of the estate of the deceased on the said parcel, and unless the application is allowed, she will be prejudiced.
3. The respondents did not file a response to the application.
Analysis and Determination 4. There is no doubt that this appeal is at the tail end of conclusion, where the ownership of the suit land is in contestation. It would be in the interest of justice, therefore, that the orders sought herein are granted pending the hearing and determination of the appeal, in order to preserve the substratum of the appeal.
Orders 5. Accordingly, for the reasons set out above, the court allows the application dated 17/5/2023 in terms of prayer 3 of the application as follows:a.A temporary injunction is hereby issued restraining the defendant’s agents, servants, family members, employees or anybody working at her behest from burying the remains of the respondent on parcel number L.R no Plot no Ex-lewa 668 pending the hearing and determination of Meru Civil Appeal no 43 of 2008. b.The costs of the application shall abide the outcome of the appeal.Order accordingly.
DATED AND DELIVERED THIS 26TH DAY OF JUNE, 2023. EDWARD M. MURIITHIJUDGEAppearances:Mr. Otieno Advocate for Applicant.Mr. Kaumbi Advocate for Respondent.