Getama & another v Maroa (Suing as the Legal Representative of the Estate of Babere Ikwabe) (Environment and Land Appeal 029 of 2025) [2025] KEELC 6750 (KLR)
The bottom line
#A Kenyan court refused to lift an order blocking a burial, ruling that the same question must wait for the full appeal to be heard.
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 application seeking to set aside or discharge the injunctive orders issued on 2nd September 2025 restraining the burial of the deceased on the suit land is merited
- 2.Who should bear the costs of the application
Key legal issues
#Whether the Court should set aside the interlocutory injunction restraining burial of the deceased on the suit land
The application was declined because granting it would indirectly determine the appeal and render it an academic exercise
The Court noted that the appeal arises from an exercise of discretion by the trial court at the interlocutory stage, and that questions of whether that discretion was judiciously exercised can only be resolved at the merits of the appeal. Because the prayers in the application mirror the reliefs in the appeal, discharging the injunction would dispose of the appeal indirectly, contrary to natural justice and rendering the appeal nugatory. Setting the orders aside now would determine the appeal prematurely.
The standard governing an appellate court's review of an interlocutory discretionary order
The appellate court must defer to the trial court's discretion and interfere only where the discretion was not exercised judicially or the conclusion is plainly wrong
Relying on Gitobu Imanyara, Abok James Odera, Mbogo v Shah, Nguruman Limited and Coca Cola, the Court reaffirmed that a first appellate court re-evaluates the evidence but that an appeal against an order made in the exercise of judicial discretion succeeds only where the discretion was not exercised judicially. These considerations are reserved for the full hearing of the appeal, not an interlocutory application.
Legal principles established
#- An appellate court interferes with an exercise of judicial discretion only where the discretion was not exercised judicially or the judge misdirected himself and arrived at a wrong decision
- An interlocutory application that would have the effect of determining the appeal prematurely and rendering it nugatory must be declined
Court orders
#- 1.The application dated 18th September 2025 seeking to set aside the injunction of 2nd September 2025 is declined
- 2.Costs of the application to be in the cause
- 3.The Appellant has three days to confirm the proceedings have been typed and the Record of Appeal filed; if not, to liaise with the Deputy Registrar to have the proceedings and decree filed not later than Friday of that week
- 4.The Appeal to be mentioned on 6th October 2025 to confirm the Record of Appeal and placement of the entire file before the Court for hearing and determination
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Trial court (magistrates' court, Kehancha)
- Not stated in the judgment
- Jurisdiction invoked
- Appellate jurisdiction over an interlocutory order of the trial court, with the application brought under Order 40 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act
Relief refused
#Setting aside or discharge of the injunctive orders issued on 2nd September 2025 restraining the burial of the deceased on parcel Bwirege/Bukihenche/990
Granting the prayers would dispose of the appeal prematurely and render it academic, since the prayers sought in the application and the reliefs sought in the appeal are one and the same
Costs
The costs of the application would be in the cause
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.
Since the application is intended to determine the appeal prematurely it would be contrary to the rules of natural justice and render the appeal nugatory.
The upshot is that the application is declined. The costs of the application would be in the course.
This court now directs that because there is a body that is lying in the mortuary pending the determination of the appeal herein the Appellant has three days to confirm whether the proceedings shall have been typed, and the Record of the Appeal filed.
Issues in the judgment
#The case number and neutral citation do not appear anywhere in the judgment provided
The judgment refers inconsistently to the parties as 'Applicants/Appellants' although styled as an appeal; the names of the deceased are inconsistently spelt within the judgment
The coram describes the Respondent's deponent and counsel but the party names in the pleadings include multiple unnamed appellants ('the Appellants') who are never individually identified
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Getama & another v Maroa (Suing as the Legal Representative of the Estate of Babere Ikwabe) (Environment and Land Appeal 029 of 2025) [2025] KEELC 6750 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6750/eng@2025-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.