Agefuma v Magagwe & 2 others (Originating Summons E009 of 2025) [2026] KEELC 5351 (KLR)

cannot agree on such a simple issue. One party, his kin, wants to bury his body on the parcel he claims to be his through his deceased brother, the other one wishes the remains to be buried elsewhere: perhaps in a tomb in a land purchased somewhere, like that which Abraham requested Hittites to buy land for a burial ground for his wife Sarah. 2. This basically is not a ruling that disposes of the instant application but one that determines an issue the parties could not agree on pending the hearing of the application. This issue was very contentious because one of the parties was died in the course of the proceedings, and the other party was apprehensive that his remains may be interred on the suit land he had been claiming on the strength or behalf of a deceased relative. At the ex parte stage this Court issued a temporary injunction against the interment of the deceased’s body on the suit land. It, however, invited the Area Chief or Assistant Chief to shed light, on oath, regarding the status of the suit land during and prior to the institution of the suit. Before the court could determine the Application for injunction the issue arose as to whether the interim orders issued earlier could subsist or be vacated hence this ruling. RULING ELCOS E009 OF 2025 2

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The substance 3. The parties in this matter moved this Court vide an application dated 3rd August 2026. The hearing thereon shall be the 6 th October 2026. It is not in dispute that the parties have been before the court for a while, and a number of interlocutory applications have been determined regarding the matter, during the pendency of the suit. 4. The unfortunate state of affairs is that during the trial the Plaintiff/Applicant passed away. This occurred, according to the applicants, over a week ago, specifically, on 27 th of July 2026. Therefore, the applicants moved the Court praying that it does issue a temporary injunction restraining the Plaintiff’s relatives from interring the remains of the deceased, Joseph Adamba Egefuma (sic), yet in the pleadings he is known as Joseph Adamba Agefuma. Their prayer was that the deceased be not buried on the two parcels of land in issue, which they gave in the application as Kanyamkago/Kawere 1/6035 and 6636. 5. Upon the application being brought under Certificate of Urgency this court issued directions to the effect that the parties attend court on the 10th of August 2025 to address it on RULING ELCOS E009 OF 2025 3

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the state of things. At the same time, it directed that the Area Chief does attend the court session to shed light on the matters that pertain the suit land and or give relevant evidence regarding status of the land. Further, on 10 th August 2026 the Court also the parties a chance to negotiate the issue regarding the extension or otherwise of the interim orders, owing to their circumstances, pending the hearing on determination of the application. This followed the evidence the Area Chief gave on both the history of the purchase of the suit land and its occupation by the alleged buyer and family, and the deceased Plaintiff. 6. This morning the parties have informed the court then that they disagreed on the way forward regarding the extension. They now have asked the court to render its ruling regarding subsistence of the interim orders. 7. The purpose of an interim injunction, in law, has always been explained and undisputed at law. It is clear that it is granted to preserve the subject matter before the court against any interference, damage or destruction pending the hearing and determination of the subject matter. This is in terms of Order 40 Rules 1 RULING ELCOS E009 OF 2025 of the Civil Procedure Rules and the 4

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requirements of the Giella -vs- Cassman Brown [1973] EA 358, which are three-pronged to the effect that an applicant has established a prima facie case; he proves that he would suffer irreparable loss that may not be compensated by damages; and if the court is in doubt, it decides the application on a balance of convenience. However, this Court is alive to the fact that it is not being called at this stage to determine the application on merits since the parties are yet to comply with some of the directions on it, particularly in regard to filing of responses and submissions thereto. But the issue is whether the interim orders issued earlier should be sustained. 8. The Court invited a neutral party, the Area Chief, to testify on the position of the land in issue, more so on the status of occupation and use of the parcels of land in issue. The said officer testified at length on 10th August 2026. Fortunately, or unfortunately he was not cross examined on any of the issues he testified on, particularly, on the history of the land and what has been happening on the land. It basically means that his evidence was incredible, and could not challenged. RULING ELCOS E009 OF 2025 5

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9. The evidence of he area Chief testified that there was a witness to the agreement of sale who was still alive who could be called to attest to the sale, even though the buy and the seller had since died. He stated further that the said parcel of land was bought by the brother to the deceased. His name was Moses Adamba. He has since died. Further, that when he died the said Moses Adamba was buried on the suit land. He also added that the wife to the deceased Moses Adamba was also buried on the suit land in the year 2013 when she died. 10. He also testified that the Applicants’ family acknowledged at all times that indeed the suit land was bought by the said Moses Adamba but when the agreement with the was entered into or reduced into writing, a different parcel of land was indicated it. Further, that the disputed had been handled for quite a while by his office and that of the area assistant chief, to the extent that at one time their offices gave the two families chance to negotiate the dispute and they used the assistant chief’s offices for the discussions. Further, that the Applicants’ family demanded in those negotiations that the ‘Plaintiff’s’ family/ Respondents move to that other parcel of land which was indicated on the agreement but which parcel of RULING ELCOS E009 OF 2025 6

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land belonged to another family than that of the Applicants now. They also gave an alternative proposal then that if the ‘Plaintiff’s’ family/ respondents would not move they add a sum of money over and above that which the land was bought for as the value of the suit land had increased. The Respondents in this application agreed to pay an additional sum of money but again the applicants changed their mind and rejected the offer. He summed that the burials of the kin to the deceased were never challenged but the applicants’ issue has always been that they did not know the current deceased person in relation to the transaction of the sale of the suit land. 11. The question of this set to determine then at this stage is whether it could be in the interest of justice to bar the burial of the deceased on the suit parcel of land while the kin who was said to have originally bought the land and his deceased wife are buried on the suit land, and their remains have never been exhumed or any case filed by the applicants for their exhumation. Put differently, what is the expediency of stopping the burial of the deceased’s remains next to the graves of his kin on the suit parcel of land yet he does not claim the suit land as his own but the deceased kin’s? Or what harm will it cause RULING ELCOS E009 OF 2025 7

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to bury a deceased family member next to other deceased family members’ graves on land they have been buried, yet their burial has never been challenged before? What is the efficacy of the interim order of injunction? 12. Here is where Solomonic wisdom is needed in order to give justice to the parties. Logically, if the burial of the original buyer and his wife was never challenged and there has never been a case for their exhumation, it means, in my humble view, that the land where the deceased is to be buried which is the land where the alleged buyer was buried is not in issue. The issue pitting the applicants with the deceased is different from the initial purchase of the suit lands and it cannot be resolved by a prohibition of the burial of his body on the suit land. Thus, in my humble view, and looking at the totality of the circumstances and the interest of justice is that it will not be proper to extend the interim orders herein. But this is on condition that if the burial of the deceased Joseph Adamba Agefuma is to be carried out, it be done specifically on the suit land where his deceased brother Moses and his deceased wife were buried and no other in relation to the neighbouring parcels to the suit land. RULING ELCOS E009 OF 2025 8

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13. Regarding the application dated 3 rd August 2026, the Applicant is directed to submit in fourteen days upon the service of the response herein, and the Respondents in fourteen days upon service of the applicants’ submissions. The application be heard on 6th October 2026. 14. It is so ordered. Ruling dated, signed and delivered virtually via the Teams Platform this 12th day of August, 2026. HON. DR. IUR NYAGAKA, JUDGE In the presence of, Mr. Kisia Advocate for the Respondent Mr. Oseno Advocate for the Applicants RULING ELCOS E009 OF 2025 9

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