FRANCIS ODOYO MBECHE VS ANDREW OTIENDE OTUOMA FRANCIS ODOYO MBECHE VS ANDREW OTIENDE OTUOMA

BRIEF FACTS
1. The Plaintiff/Applicant filed the instant application dated 3rd April, 2025 seeking the following orders:
1. Spent.
2. Spent.
3. THAT there be a temporary injunction restraining the Defendant/Respondent whether by himself, his agents, employees, servants and/or anyone acting under his instructions from burying the body of GORDON OPIYO OTIENDE or in any way engaging in any activity on the suit land (L.R. NO. SUNA EAST/MANYATTA/173) pending hearing and determination of the application and of the main suit.
4. THAT the OCS God Jope Police Post to be ordered to assist in compliance with these orders.
5. THAT the costs of this case be provided for.
2. The Application was based on grounds set out in the body of it and supported by the Affidavit of FRANCIS ODOYO MBECHE the Applicant herein sworn on 3rd April, 2025. He stated that he filed the present suit seeking dissolution of the trust created by the decree dated 20th December, 1996 in Kisii High Court Civil Suit No. 113 of 1988 for purposes of equitable distribution of the suit land among all beneficiaries.
3. He further stated that he has been living on the suit land with his family together with all the other beneficiaries including the Respondent.
4. He stated that the Respondent intends to bury his late son GORDON OPIYO OTIENDE on the suit land which subject matter is pending before court.
5. He also stated that the Respondent has an alternative land which he could use to bury his late son. He added that if the main suit succeeds, he will be compelled to exhume the body of the said GORDON OPIYO OTIENDE which will be costly and invite psychological, social and emotional discordance.
6. He stated that it was necessary to preserve the suit land by grant of the temporary injunction pending hearing and determination of the suit.
7. In conclusion, he urged the court to allow the application as prayed.
Response
8. The Respondent filed his Replying Affidavit sworn on 7th April, 2025. In it he averred that the application was an abuse of the court process as he was the registered proprietor of the suit land. He further averred that the orders being sought by the Applicant for dissolution of the trust was not a guarantee to warrant this court injunct a party that owns the land from interring his own son.
9. He averred that the deceased, with the Applicant’s knowledge built and established a homestead in 2019. He averred that the Applicant occupies a separate portion on the land. The Respondent averred further that the Applicant had earlier filed an adverse possession claim which he later withdrew and that there was nowhere he stated that he claimed the entire land.
10. He also averred that the surveyor’s report showed that they each occupied a distinct portion on the suit land. He added that it was not clear the specific place the grave was dug. He averred that the Applicant had also buried his kinsmen on the suit land sometime back but that the Respondent never protested. He averred that the application was premised on malice and that it disclosed no reasonable ground or prima facie case with a probability of success.
11. The Applicant in response filed a Further Affidavit sworn on 24th April, 2025 where he reiterated the contents of his supporting affidavit. He added that should or if the Respondent be permitted to proceed with the burial rights of his late son on the suit property, the Respondent will use the same to disinherit others or claim ownership.
12. The Respondent also filed a Further Affidavit sworn on 3rd July, 2025 where he averred that he had lost his other son Joseph Omondi Otiende who was buried on 13th May, 2025, about 8 meters from the Respondent’s house.
13. He averred that his portion has never been disputed.
14. In the preliminary stage of the hearing of the instant application, this Court called on the Area Chief, the Assistant Chief and the Village elder to confirm the occupation and physical status of the suit land. Both the Area Chief and the village elder of God Jope location testified. The Area Chief confirmed that the suit parcel was occupied by four families, being siblings, and that after a family dispute arose, the Land Registrar was called upon by the Assistant chief to visit the land. He did so and demarcated the land. He added that the boundaries had since be interfered with in one way or other. He added that the land was family land which had a long dispute because of the Defendant’s conduct.
15. The Village Elder also testified. At first, he said that he knew the portion of the parties on the land. But he contradicted himself by stating that he did not know that the parcel of land had been demarcated into more than four portions yet he had acknowledged that there were about 12 families living on the suit land. He was an untruthful witness. This made his testimony doubtable and therefore a candidate for leaving out in terms of consideration.
Submissions
16. None of the parties filed their submissions. The Respondent stated that he would rely on the Replying Affidavit for the court to determine the issue. A first, the Applicants moved the court for him to file a three page set of submissions. But some time later they decided not to hence they did not.
17. In terms of the Court of Appeal case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR, submissions are only a marketing language of parties. Their absence does not prejudice any party’s merits of their case. The Court stated,
“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.”
Analysis and Determination
18. This court has considered the application and is of the view that the main issue for determination is whether the Applicant had met the threshold for grant of a temporary injunction.
19. In the case of Charter House Investment Ltd V Simon K. Sang & 3 others [2010] KECA 56 (KLR) the court held as follows:
“Injunction is an equitable and discretionary remedy, given when the subject matter of the case before the Court requires protection and maintenance of the status quo. The award of a temporary injunction by Courts of equity has never been regarded as a matter of right, even where irreparable injury is likely to result to the applicant. It is a matter of sound Judicial discretion, in the exercise of which the Court balances the conveniences of the parties and the possible injuries to them and to third parties…”
20. This court is also guided by the Court of Appeal case in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR, where the court held that:
“All that the Court is to see is that on the face of the person applying for an injunction has a right which has been or is threatened with violation.”
21. The Applicant contends that the suit land while still pending hearing and determination of the claim of the issue of dissolution of a trust, the Respondent has since interfered with the suit land by intending to bury his late son. It was his case that by granting of a temporary injunction, the same would result in preservation of the suit property.
22. The Respondent, claims that the prayers of dissolution being sought by the Applicant was not a guarantee that the court would award him to warrant grant of the temporary injunction orders currently being sought.
23. Further, in order for a party to be granted a temporary injunction, he/she must pass the test set out in the case of Giella v Cassman Brown [1973] EA 358. It is a three-pronged one, which is:
(a)Whether the applicant has established a prima facie case
(b)Whether the he or she would suffer irreparable loss that may not be compensated by damages and
(c)That if the court is in doubt, it may rule on a balance of convenience.
24. Going to the first requirement of whether there is a prima facie case established herein. The reason is that, it is not in dispute that the property is being held by the Respondent in trust for the rest of the beneficiaries. It is a matter to be canvassed at the hearing, if this matter ever gets there. It cannot be gainsaid that the Applicant and the Respondent either live together on the suit parcel or claim to have portions of land thereof. Additionally, the Area Chief confirmed that the land, being family land, had been at one time when the Land Registrar was called to the land, to four portions. The village elder, although he contradicted himself in some respects of the evidence stated that there were over twelve families residing on the land.
25. Further, it has not been disputed by the Respondent that there was a succession matter, to wit, Kisii High Court Civil Suit No. 113 of 1988 in which a decree dated 20th December, 1996 was issued, and it is decision that granted the Defendant the permission to be registered as owner in trust for the Applicants among others. The Respondent paints a picture of him being “a saint” in the sense that to him, each of the beneficiaries have their respective portions delineated and distinct yet the Applicants, and even the administration have a different view and facts.
26. The Respondent argues that the claim for the dissolution of a trust that was created between him and the rest of the family via the succession cause is not a guarantee that the case will succeed. Further that he was the registered owner of the land. He wishes to point a picture that there is no issue between him and the siblings over the land.
27. If indeed it is true that there is no dispute between the Defendant and his siblings (beneficiaries of the trust he holds), this Court wonders why, since 1996, that is to say, why on earth for all those years going to about thirty is the Respondent not willing to give or has never given the applicants their due shares as beneficiaries by way of registration of them in their favour, and there exist complaints that he has now resorted to drive them out of the land. If not sheer greed it would be for other motives. Be that as it may, since there is a tussle as to the dissolution of that trust, it would be in the interest of all the parties to have their share determined: the Plaintiffs are entitled to their shares.
28. It is nonsensical for the Respondent to admit that indeed there was a succession cause that gave him the letters of administration for the registration of the parcel of land in his favour in trust for him and beneficiaries, and that application for dissolution of the same is not a guarantee of the success of their case as to deny them the orders sought. On the contrary, he should be ashamed that he can claim to be the registered owner to the exclusion of the other beneficiaries of the estate he inherited for himself and in trust for the others siblings while he knows well how he got to be registered as owner. This dishonesty and sign of greed aimed at disentitling the other beneficiaries of the trust and the beneficiaries allegations of the existence of a trust which is being misused to their disadvantage shows that the applicants have a prima facie case in this matter worthy the grant of the orders sought.
29. Further, this Court is alive to and takes into account the facts as were given by area administration, particularly the Area Chief whose testimony the court found to be credible. The court had summoned him and others administrative officers at the preliminary stage of the instant application to give a picture of the situation on the position on the suit land in terms of occupation and use. From the evidence it came out that the tug of war between the parties is that the Respondent intends to bury his son on the same property and area over which the Applicant and other parties have filed this case seeking that the issue of trust be dissolved. In light of the above, I find that the Applicant has demonstrated that his case for injunction is merited due to him having a probable chance of success.
30. The second requirement is whether the Applicant will suffer irreparable harm. It is not in contention that the Respondent intends to have his late son GORDON OPIYO OTIENDE on the suit parcel of land. Actually, there is evidence that, by way of his own Further Affidavit sworn on 3rd July, 2025, that he has already buried his other deceased son Joseph Otiende Omondi on his suit land. This is despite the fact that this Court had issued a temporary order of injunction (status quo) particularly barring him from carrying out the burial the deceased son, Gordon Opiyo Otiende, on the suit land. One wonders why, other than sheer audacity or impunity or deliberate don’t care attitude, he would bury the other one when an order stopping the burial of the other is in place! Why did the Respondent no wait for the Court to determine the application herein?
31. It is not in dispute that the Respondent’s portion of land forms part of the suit land and so do those of other beneficiaries but the contention is that the specific portions or shares have not been determined. In light of the above, it is this court’s humble view that if the Respondent is allowed to continue with the burial process and it turned out later that the burial site lies on one of the beneficiaries’ ultimate portion or share, it would lead to orders of exhumation. Put differently, it would be a health hazard, thereby, affecting the environment in general: moreover, it may cause undesirable cultural emotions. These actions that are no easily compensated by way of payment of damages. I am thus persuaded that on these grounds alone, the Applicant will suffer irreparable harm that would not be adequately compensated by an award of damages.
32. It is my humble finding that the Applicant has satisfied the first two conditions precedent for the grant of injunction. That, regardless, I still find that the balance of convenience shifts in favor of granting the injunction rather than denying it. This will enable the Court determine the issue on the merits by upholding the doctrine of audi alteram partem.
33. This Court could have issued orders regarding the alleged disobedience of the its orders, which is admitted by the Respondent, but it has not been moved accordingly.
34. The upshot of the forgoing is that the application is merited. It is allowed to the extent that the temporary injunction issued herein is allowed, pending the hearing of the suit. There be and is hereby issued an injunction allowed as prayed.
35. Specifically,
a) An injunction is hereby issued restraining the Defendant/Respondent whether by himself, his agents, employees, servants and/or anyone acting under his instructions from burying the body of GORDON OPIYO OTIENDE or in any way engaging in any activity injurious to or that might change the character and nature of the suit land, namely, L.R. NO. SUNA EAST/MANYATTA/173, pending hearing and determination of the main suit. For clarification and in the interest of justice and safeguarding the subject matter given the antecedents, the injunction includes an order restraining the Defendant from mining, quarrying, excavating soil, sand or rocks from the said parcel of land, and plaintiff any perennial or biennial crops on the land except tending those already growing or harvesting therefrom and or planting only seasonal and annual crops, and prohibits the doing of developments on the land other than maintaining by only minor repairs or painting og those already on the suit land.
b) The OCS God Jope Police Post is ordered to provide security in terms of assisting with the compliance of these orders.
c) Costs of the matter shall be to the applicants.
36. The matter shall be mentioned for compliance on 16th October, 2025.
37. It is so ordered.