1. The application dated 6/8/2024 has been placed before this court for determination. It has been filed by Lucky Kalamba Rimba who calls himself an interested party and a son to the deceased Kea Rimba Gona, and it seeks the following principal orders, to paraphrase:
a. An order of temporary injunction restraining Mahmoud Abdallah Mohamed and his agents from stopping and/or preventing the burial of the remains of Kea Rimba Gona pending the hearing and determination of the application;
b. An order of temporary injunction restraining Mahmoud Abdallah Mohamed and his agents from stopping and/or preventing the burial of Kea Rimba Gona pending the hearing and determination of this suit;
c. An order compelling Mahmoud Abdallah Mohamed and his agents to open and create a passage through the wall for the entrance and exit of the applicant and others intending to enter or visit their homestead.
2. The application gives the grounds on which it is brought as follows: after he and his family had lived on the suit land for many years, the deceased, formerly a party to the present suit died on 19/7/2024; after his demise Mahmoud the 1st respondent, having heard of the burial plans, took action and obstructed the interment of the deceased on the family burial ground. This he accomplished with assistance of policemen but without any court order. It is stated that the 1st respondent’s conduct as well as that of the police is illegal and in violation of the constitutional rights of the applicant and his family. The application is supported by the sworn affidavit of the applicant which reiterates the grounds at the foot of the application with the additional fact that the applicant has obtained a limited grant to appear in the matter on the deceased’s behalf. He also avers that the body of the deceased now lies at the mortuary and the family is continually getting traumatized and continues to incur expenses as long as the body has not been buried.
3. The application is opposed by the one Abdalla Said Abdalla who refers to himself as an authorized attorney of the respondent vide his sworn replying affidavit dated 26/8/2024. In it he has stated as follows: that the notice of motion is spent for lack of any substantive prayers; that the suit land is registered in the names of the plaintiffs and has now been subdivided; that the deceased is not a registered owner of the suit property and neither was he party to the present suit; in support of the latter statement there is annexed to the affidavit an application filed on 21/7/2024 seeking joinder of the deceased and others to the present suit; it is thus averred that the applicant is a stranger to the proceedings. The deponent also states that if the remains of the deceased are interred on the suit property, it will lose its intrinsic and sentimental worth in a manner that can not be compensated for by way of damages. Besides, it is stated, the application has failed to meet the threshold for the grant of an order of injunction, and the respondents would be prejudiced by the grant of the orders sought as the land remains the subject of this suit.
4. The applicant filed a further affidavit in response to the replying affidavit, stating that the deceased had remained on the suit land for a long time and had buried some of his relatives thereon; that it is the only land that the deceased and his family have known and tilled; that on the basis of copies of agreements attached, said to have been prepared by the plaintiff’s advocates, the land belongs to the deceased who had entered into an agreement with the plaintiff respondent who consented and/or allocated the deceased 3 acres thereof; that in august 2000 the plaintiff was ordered in a District Officer’s determination which has never been set aside, to unreservedly surrender one acre to the deceased; that the plaintiff was supposed to subdivide the suit property and allocate the deceased 3 acres thereof but has reneged on the agreement; that in view of attached court documents, it is not true that the deceased is not a party to this suit, and the plaintiff is one of those who had sued the plaintiff herein.
5. On the issue of joinder, I have perused the present court record and found that the name of the deceased appears as one of the defendants in the present suit. An example is the notice of motion dated 6/4/2022 wherein he is named 8th defendant in Malindi ELC 99 of 2019 which is now acknowledged to have been consolidated with two other suits, Malindi ELC 139 of 2015 and Malindi ELC 28 of 2020. The deceased’s name also featured as the 4th defendant in Malindi ELC 139 of 2015.
6. Be that as it may it is evident that each side is claiming against the other in these consolidated suits and there has not been any final determination as to who is the owner of the suit property. The plaint on Malindi ELC 99 OF 2019 seeks a declaration that the plaintiffs are the bona fide owners of the suit land known as LR NO. MN/III/783 and an eviction order against the defendants.
7. There are several grounds upon which the present application falters. First, this court is yet to conclude this dispute and rule on who is the rightful owner of the suit land. I have noted that while the plaintiffs rely on documents of title to the land, the applicant relies on an agreement. Notwithstanding that there is said to be an award in the deceased’s favour made by a District Officer (D.O.) , I consider it unsafe in the circumstances to allow any orders as sought by the applicant before the conclusion of the suit, as the parties have subjected themselves to the jurisdiction of this court and thus expect a final resolution from it, whether or not that D.O.’s determination will be adopted or taken into consideration or not. It is this court then that, barring any appeal from its decision, will exercise final jurisdiction in the matter.
8. Secondly, there is an allegation that the land has already been subdivided and the applicant has not identified the portion in which the intended interment is supposed to be effected.
9. Thirdly, the applicant has not been substituted for the deceased and he does not have any footing or locus standi to lodge the present application.
10. The conclusion arising from the foregoing is that the application dated 6/8/2024 lacks merit and the same is hereby dismissed with costs.