The application before court for determination is the Notice of Motion dated 20th March 2025 filed in VIHIGA ELCLA NO E022 OF 2024, pursuant to the provisions of section 5 (1) of the Judicature Act, Order 40 Rule 3 (1) and Order 50 of the Civil Procedure Rules and section 29 of the Environment and Land Court Act No. 19 of 2011.
The application seeks orders that:
1. This application be certified urgent, and service thereof be dispensed with in the first instance.
2. An order of committal to Civil Jail to be made against the Respondent/Appellant herein, ROSEMARY NEKESA MWALE, for such period as this Honourable Court may deem fit and just due to the willful disobedience of the court orders issued on 28th November, 2024 in VIHIGA MCELC No. E057 of 2024 and in ELCA/E022/2024 issued on 10th December 2024.
3. This Honourable Court be pleased to order that the Appellant/Respondent ROSEMARY NEKESA MWALE shall not be heard in these proceedings until she purges her contempt.
4. This Honourable Court be pleased to issue an order compelling the Respondent/Appellant, ROSEMARY NEKESA MWALE, by herself or agents, to exhume and remove the remains of her husband CHARLES MWALE (DECEASED) from the parcel of land known as KAKAMEGA/KEDOLI/179 at her own cost.
5. The Applicant/Respondent be granted access to the parcel of land known as KAKAMEGA/KEDOLI/179 pending the determination of the Appeal.
6. The OCS SBATIA POLICE STATION be directed to assist in enforcing and ensuring compliance with these orders herein sought.
7. The Honourable Court be pleased to issue any just order as it deems appropriate in the circumstances; and
8. The costs of this Application be borne by the Respondent/Applicant.
The grounds upon which the application is brought are:
a) That the Applicant/Respondent filed an application under Certificate of Urgency together with pleadings in MCELC No. E057 of 2024 EBBY KAVAYA JOEL. (Suing as administrator of the Estate of SARAH MBIGULA MIGASA alias SARAH MIGASA (Deceased) versus ROSEMARY NEKESA MWALE seeking to prevent the interment of the late CHARLES MWALE, the Appellant’s/Respondent’s husband, on a portion of the parcel of land known as KAKAMEGA/KEDOLI/179 which is registered in the names of SARAH MBIGULA MIGASA alias SARAH MIGASA (Deceased).
b) That after the suit was filed, Hon. J. A. AGONDA (PM) on 9th October, 2024, issued injunctive orders preventing the burial of the deceased on the suit parcel of land pending the hearing and determination of the application therein and the matter was fixed for inter partes hearing.
c) That the Applicant/Respondent took the initiative of physically serving the Appellant/Respondent on 9th October, 2024 through a Court Process Server and an affidavit of service was filed which culminated in the Appellant/Respondent choosing the firm of Vusha Onsembe and Mambiri Advocates who came on record in MCELC No. E057 of 2014 on 15th October, 2024.
d) That parties to the suit then appeared before the learned Magistrate on 22nd October, 2024 and through their advocates, they took directions to canvass the application.
e) That the Honourable Court then delivered its ruling on 28th November 2024, in the presence of the Appellant’s/Respondent’s Advocate, temporarily restraining her agents, servants, assignees and any other persons acting on her instructions or any other persons from interring and/or burying the remains of Charles Mwale (now deceased) on the parcel of land I. R. No. KAKAMEGA/KEDOLI/179 until the suit is fully heard and determined, and additionally orders were issued to the Officer Commanding Vihiga Police Station to assist in enforcing and ensuring compliance with the orders.
f) That the Respondent/Appellant, dissatisfied with the decision of the court of issuance of injunctive orders, approached this Honourable Court via a Memorandum of Appeal and also filed an application under Certificate of Urgency both dated 1st December, 2024 seeking orders of grant a stay of execution of the Ruling dated 28th November 2024 and also stay of proceedings in Vihiga MCELC E057/2024, EBBY KAVAYA JOEL vs ROSEMARY NEKESA MWALE.
g) That this Honourable Court took note of the urgency in the matter and on 10th December, 2024, orders of temporary stay of proceedings in Vihiga MCELC NO. E077/2024 – Ebby Kavaya Joel vs Rosemary Nekesa Mwale pending the hearing of the appeal were issued, and additionally, this Honourable Court gave further directions that for the avoidance of doubt the court had not stayed the orders of injunction granted by the lower Court on 28/11/2024.
h) That through her advocate on record, the Respondent/Appellant extracted, paid for and served upon us the orders issued on 10th December, 2024 which clearly indicated that the injunctive orders issued by the lower court were still in place.
i) That the Respondent/Appellant, despite being aware that there were injunctive orders in place, took the body of the late CHARLES MWALE from Kaimosi Morgue at 2 am on 14th March, 2025 and buried him on a portion of the parcel of land known as KAKAMEGA/KEDOLI/179.
j) That before his death, the Deceased and his family, including the Appellant/respondent herein, had forcefully and without authority trespassed into the parcel of land known as KAKAMEGA/KEDOLI/179 and to date have denied the Applicant/Respondent access to the parcel of land and have even gone a step further to disobey court orders.
k) That a Judgment was delivered, before the High Court at Vihiga in HCFA E008 of 2022 in the matter of the estate of the late SARAH MBIGULA MIGASA alias SARAH MIGASA (Deceased) on 27th February, 2025 dismissing the appeal and parties were directed to conclude the Succession cause before the lower court.
l) That Applicant/Respondent has made several demands and attempts to access the parcel of land but has been met with hostility and threats, and to date the Appellant/Respondent has refused to comply with any orders, claiming ownership of the said suit land. To date, the only persons accessing the parcel of land are the Appellant/Respondent together with his representatives.
m) That the Deceased’s family, now headed by the Appellant/Respondent herein, have buried the remains of the Deceased on the suit land which is currently subject of a succession matter hence any interference with the parcel of land known as KAKAMEGA/KEDOLI/179 amounts to intermeddling and is contrary to the provisions of Section 45 of the Law of Succession Act. As it stands, the parcel of land wholly and absolutely belongs to SARAH MBIGULA MIGASA alias SARAH MIGASA who is currently deceased.
n) That given the issues pertaining trespass and or interference with the suit parcel of land have been clearly demonstrated by the Applicant/Respondent through the Appellant/Respondent’s actions, the fear that the Appellant is going to take advantage of the lack of a conclusive determination and hurriedly bury the remains of the deceased on the parcel of land known as KAKAMEGA/KEDOLI/179 have come to fruition.
o) That the Respondent/Appellant is in disobedience of court orders issued by two different courts, of which the orders issued by this Honourable Court on 10th December, 2024, and thus her action is contemptuous and punishable only by imprisonment.
p) That the continued stay of the remains of the deceased on the parcel of land known as KAKAMEGA/KEDOLI/179 registered in the name of SARAH MBIGULA MIGASA alias SARAH MIGASA whose estate is still pending distribution in Vihiga SPM SUCC E140 of 2017 will adversely affect the Applicant/Respondent together with other beneficiaries. It will be next to impossible for her family to use the said land, and the memory of the remains of the deceased is bound to haunt them as they are remains of a stranger and trespasser interred in the suit parcel of land in blatant disobedience of court orders.
The application was opposed on the grounds of opposition dated 2nd December 2025, namely that the court lacks jurisdiction to entertain or grant the orders sought, as the application was heard and determined on 9th July 2025, whereby the application was dismissed, that the application is res-judicata, that the court is functus officio in respect of the issues of exhumation and contempt of court. That the application is an abuse of the court process as it intends to re-litigate matters already concluded. That the respondent is not the owner of the subject parcel of land. That the alleged disobedience relates to orders of the Magistrate’s Court in MCELC No. E057 of 2024, the court lacks jurisdiction to hear the contempt aspect of the application.
The Respondent also filed a Replying Affidavit and Notice of Preliminary Objection.
The application was heard by way of written submissions.
On behalf of the applicant, written submissions dated 16th January 2026 were filed by the firm of Makonjio Nyaberi & Co. Advocates, and on behalf of the Respondent, written submissions dated 7th January 2026 were filed.
I have keenly considered the application and all material placed before court. The application essentially seeks to punish the appellant for disobedience of the court order and to have the appellant undo the acts of disobedience.
The order alleged to have been disobeyed is an order of temporary injunction restraining the Respondent, her agents, servants, assignees and any other person acting on her instructions or any other persons from interfering and/or burying the remains of Charles Mwale, now deceased, on the parcel of land L.R. No. KAKAMEGA/KEDOLI/179 till the suit is fully heard and determined, issued by the trial court on 28/11/2024.
The record also shows that a preliminary objection raised by the appellant herein on jurisdiction of the trial court was dismissed on 5th December 2024 and each party ordered to bear its own costs thereof.
The record further shows that dissatisfied with the orders of 28th November 2024, the Appellant filed appeal No. E022 of 2024 and, being dissatisfied with the orders of 5th December 2024, the Appellant filed appeal No. E024 of 2024.
What is before this court are the appeals seeking the court to determine whether or not the trial court erred in issuing the injunctive orders against the Appellant and in dismissing the Preliminary Objection filed by the Appellant in the trial court.
The current application is a matter within the jurisdiction of the trial court. There is no explanation why the application was not filed before the trial court.
For the foregoing reasons, I find that the application is improperly before this court.
The application is struck out. The Applicant may file the application in the appropriate court.
Each party shall bear their own costs of the application.
Ruling signed and dated at Kisumu and read virtually on this 11th day of June 2026 through Microsoft Teams Video Conferencing Platform.
E. ASATI,
JUDGE.
In the presence of:
Atika..Court Assistant
Shabola for the applicant
No appearance for the Respondent.
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