Ojango & another v Akaka (Environment and Land Case E039 of 2025) [2025] KEELC 8291 (KLR)
The bottom line
#A Kenyan court blocked a burial on privately titled land, confirming that a grave on property changes its character and counts as irreversible harm.
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 applicants have met the threshold for grant of orders sought of temporary injunction pending hearing and determination of this suit
Key legal issues
#Whether the applicants met the Giella v Cassman Brown threshold for a temporary injunction restraining burial on the suit property
Yes - prima facie case shown by titles and prior dismissal of the respondent's trust claim; irreparable loss shown because burial would alter the land's character; balance of convenience favours the title-holding applicants
The court took judicial notice of its own rulings in ELC 26 of 2024 and ELC 66 of 2019, in which the respondent's trust and adverse possession claims were dismissed. The applicants produced titles to the suit property. Interment of human remains carries deep cultural meaning and would change the character of the land, satisfying irreparable loss. Holding title and prior court findings tipped the balance of convenience in the applicants' favour.
Whether the applicants could obtain eviction of the defendant's family at interlocutory stage
No - eviction can only issue upon final determination of the suit
Counsel confirmed the defendants reside on the suit property. An order restraining them from being on the land would amount to eviction, which is a final relief sought in the plaint and cannot be granted through an interlocutory application, however weak the defendant's counterclaim appears.
Legal principles established
#- The applicant for a temporary injunction must demonstrate a prima facie case with chances of success, irreparable loss, and that the balance of convenience tilts in their favour.
- Burial of human remains on land changes the character of the property and can constitute irreparable loss.
Court orders
#- 1.A temporary injunction restraining the defendant, his agents, family members and any person acting on his behalf from burying the remains of his deceased brother or interring any other remains on the suit property or making further burial arrangements pending hearing and determination of this suit
- 2.The defendant's family, though not evicted, are restrained from further developing or doing anything on the suit property that may change its character pending hearing and determination of this suit
- 3.The OCS Khwisero Police Station to assist in effecting the orders
- 4.Costs of the application awarded to the plaintiffs/applicants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 40 Rule 1 of the Civil Procedure Rules
Relief refused
#Eviction of the defendant and his family from the suit property at interlocutory stage
Defendants are on the land and eviction can only issue upon conclusive determination of the suit
Costs
The costs of the application are hereby awarded to the plaintiffs/applicants.
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.
The applicant must demonstrate prima facie case with chances of success, irreparable loss and show that the balance of convenience tilts in favour of granting an injunction.
The fact that the respondent has in the past buried his relatives on the suit property cannot be the basis for further violating the plaintifis' apparent rights to the suit property.
A temporary injunction is hereby issued restraining the defendant by himself, his agents, family members and or any other person acting on his behalf, from burying the remains of his deceased brother or interring any other remains on land parcel No. Kisa/Wambulishe/330
The costs of the application are hereby awarded to the plaintifis/applicants.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ojango & another v Akaka (Environment and Land Case E039 of 2025) [2025] KEELC 8291 (KLR)", Case Analysis (2025). Notice of motion dated 20th November 2025 (suit property Kisa/Wambulishe/330 subdivided into 2032, 2033 and 2034). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8291/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.