Samuel Chege (Administrator of the estate of Kimani Kihethu) v Charles Kipchumba Biwot Kiputia [2019] KEELC 70 (KLR)
The bottom line
#A Kenyan court refused to punish a man for contempt or order his son's exhumation because the other side couldn't prove the court order was served before the burial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent acted in contempt of court orders
- 2.Whether the respondent should be committed to civil jail
- 3.Whether the respondent should exhume the remains of his son from the suit land
Key legal issues
#Whether the respondent was in contempt of the injunction order
Contempt was not established because proof of service was deficient - the affidavit of service did not annex a signed copy of the order and the process server was not produced for cross-examination
The applicant claimed personal service on 2nd February 2018 but the order referenced as annexure 'D' was not properly annexed and the affidavit of service lacked a signed copy of the order despite claiming the respondent signed it. The process server was not put in the witness box. Following the presumption-of-service and cross-examination principles in Dickson Daniel Karaba, contempt could not be sustained.
Whether committal to civil jail was warranted
Committal was refused; a party served only after compliance cannot be held in contempt
The respondent deponed that he was served with the order after burying his son. Since the applicant did not prove timely service enabling compliance, the respondent could not be treated as a contemnor and was not a fit candidate for committal.
Whether exhumation should be ordered
Exhumation was deferred as an interlocutory matter pending final determination of ownership on appeal
Relying on Hellen Cherono Kimurgor and Elliud Kingwara Adawo, the court held the dead should rest, that remains on the land would not prejudice the claim, and that exhuming the body before the appeal is determined might disturb it unnecessarily if ownership is ultimately resolved against the applicant.
Legal principles established
#- There is a presumption of proper service of court process which the party disputing service must rebut
- Where service is denied, the process server should be placed in the witness box for cross-examination
- The primary function of the court in burial disputes is to keep faith with the dead and respect the deceased's assumed wishes
Court orders
#- 1.The applications dated 31st January 2018 and 14th February 2018 were dismissed
- 2.Costs to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Not expressly stated; arising in an appeal concerning ownership of land known as NGERIA/KESSES BLOCK 5 (BAYETE) 30
Relief refused
#Order for committal of the respondent to civil jail for contempt
Service of the injunction order was not proven to have been effected before the burial; the respondent deponed he received the order after the burial
Order directing the respondent to exhume the remains of his son from the suit land
The application is interlocutory; the dead should be left to rest pending determination of ownership on appeal
Costs
dismissed with cost to abide the outcome of the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I therefore find that the applications for orders of exhumation and committal to civil jail lack merit and are therefore dismissed with cost to abide the outcome of the appeal.
There is a presumption that the court process was properly served unless such presumption is rebutted and that the burden lies on the party questioning the affidavit of service to show that the same is incorrect.
Where service is denied it is normally desirable that the process server be put in the witness box and the opportunity given to those who deny service to cross-examine him.
the primary function of the court is to keep faith with the dead
In the premises he cannot be considered to have been a contemnor as the applicant has not proven that he served the respondent in time for the order to be effected.
Issues in the judgment
#The parties are referred to inconsistently as applicant/respondent and at times as appellant, with the applicant's substantive position described as that of an appellant whose case was dismissed in the lower court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Chege (Administrator of the estate of Kimani Kihethu) v Charles Kipchumba Biwot Kiputia [2019] KEELC 70 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/70/eng@2019-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.