Court orders body exhumed, buried at cemetery in Kilifi land dispute

Justice James Olola directed the commander of Kijipwa Police Station in Kilifi County to exhume the remains of Sebastian Kai Mwanguza and bury them in a public cemetery. PHOTO | FILE | NATION MEDIA GROUP

What you need to know:

  • Justice James Olola directed the commander of Kijipwa Police Station in Kilifi County to exhume the remains of Sebastian Kai Mwanguza and bury them in a public cemetery.
  • Justice Olola, of the Environment and Land Court in Malindi, said Mr Mbura Washe Lewa did not consent to the burial on his property.
  • He ruled that Mr Lewa is entitled to the exclusive and unimpeded right of possession of his land located within the Kijipwa Settlement Scheme.


A court has ordered a woman to exhume her son’s remains in a dispute over his burial almost five years ago on a relative’s piece of land.

Justice James Olola directed the commander of Kijipwa Police Station in Kilifi County to exhume the remains of Sebastian Kai Mwanguza and bury them in a public cemetery should Ms Mukambe Kiti and her grandson Boniface Kai defy the instructions.

Justice Olola, of the Environment and Land Court in Malindi, said the relative did not consent to the burial.

He said Mr Mbura Washe Lewa proved his case against Ms Kiti and Mr Kai.

NO CONSENT

Mr Lewa sued his two relatives, who are also his neighbours, saying they trespassed into his land and conducted the burial in November 2015.

Justice Olola ruled that Mr Lewa is entitled to the exclusive and unimpeded right of possession of his land located within the Kijipwa Settlement Scheme.

"Given the undisputed evidence that the defendants interred the remains  without the plaintiff’s consent, it is my considered view that they had no justification whatsoever to do so and that their actions were wrongful and amounted to trespass,” he said.

He added that evidence showed the land was allocated to Mr Lewa in 1988 by the Settlement Fund Trustees (SFT) and that  he paid the loan due and obtained a discharge of the charge on January 12 2010. 

The court noted that the 1.052 hectare property was subsequently transferred to Mr Lewa on November 22, 2011 and that on August  17 August 2015, he was issued with a title deed.

"It would appear that for some reason, the late Sebastian and the defendants were not happy with the allotment of the land to the plaintiff.  The defendants did not, however, testify before me and there was no evidence that they had, despite their grievance, ever succeeded to impeach the plaintiff’s title.”

TRADITIONS

Mr Lewa had told the court that the deceased was not his kinsman and that the burial was against his cultural and customary practices and had impeded his right of possession, use and quiet enjoyment of the land.

He said he protested against the burial and reported the matter at Kijipwa Police Station and also sought an order of injunction but by then, the defendants had proceeded with the burial.

Mr Lewa told the court that while making burial preparations, the defendants were fully aware that the land belonged to him but decided to ignore the fact.

During cross examination, however, Mr Lewa admitted that the deceased was his father’s younger brother and that they previously stayed near a chief’s place.

He further told the court that the deceased and the defendants buried other relatives on his land but without his consent.