Norah Bosibori Mang’erere & 4 others v Henry Nyabuto Mang’erere [2020] eKLR Case Summary

Court
Environment and Land Court at Nairobi
Category
Civil
Judge(s)
J. K. Sergon
Judgment Date
October 09, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the 2020 eKLR case summary of Norah Bosibori Mang’erere & 4 others v Henry Nyabuto Mang’erere, detailing key legal findings and implications. Perfect for legal research and analysis.

Case Brief: Norah Bosibori Mang’erere & 4 others v Henry Nyabuto Mang’erere [2020] eKLR

1. Case Information:
- Name of the Case: Norah Bosibori Mang’erere, James Mang’erere, Joseph Mang’erere, Lucas Ayora Mang’erere, Catherine Mang’erere v. Henry Nyabuto Mang’erere
- Case Number: Civil Suit No. 65 of 2020
- Court: High Court of Kenya at Nairobi
- Date Delivered: October 9, 2020
- Category of Law: Civil
- Judge(s): J. K. Sergon
- Country: Kenya

2. Questions Presented:
The central legal issues in this case involve:
- Whether the High Court has jurisdiction to hear the case concerning the burial of Marco Mang’erere.
- Whether the applicants are entitled to a temporary and/or mandatory injunction to prevent the respondent from interfering with the remains of the deceased and to compel the repatriation of the remains to Kenya.

3. Facts of the Case:
The plaintiffs/applicants, consisting of Norah Bosibori Mang’erere and her children, sought legal remedies concerning the remains of Marco Mang’erere, who was their husband and father respectively. The deceased, a Kenyan citizen, had relocated to the USA for medical treatment and passed away there. The respondent, Henry Nyabuto Mang’erere, buried the deceased in Arizona without consulting the applicants, leading to the current dispute over the burial rights and jurisdiction.

4. Procedural History:
The plaintiffs filed a Notice of Motion on May 19, 2020, seeking various orders including a temporary injunction against the respondent from disposing of the remains and a mandatory injunction to repatriate the remains to Kenya. The respondent opposed the motion through a replying affidavit, and the court directed both parties to submit written arguments. The applicants’ submissions were filed, while the respondent failed to submit any by the time of the ruling.

5. Analysis:
- Rules: The court considered the principles governing interlocutory injunctions, as established in *Giella v Cassman Brown & Co. Ltd (1973) EA*, which requires the applicant to demonstrate a prima facie case, the threat of irreparable loss, and the balance of convenience favoring the applicant.
- Case Law: The court referenced *Gremmo Danielle & Another v Kilily Spa* and *Raytheon Aircraft & Another v Air Al-Faraj Ltd*, establishing that a party entering an unconditional appearance submits to the court's jurisdiction, thereby negating any later jurisdictional challenges.
- Application: The court found that the applicants did not demonstrate a prima facie case or irreparable loss. The deceased had been a permanent resident of the USA for nearly ten years, and the circumstances of the Covid-19 pandemic were deemed to have affected the ability to repatriate the remains. The court concluded that the respondent's actions, although contested, were not unreasonable under the pandemic's constraints.

6. Conclusion:
The court dismissed the plaintiffs' motion for injunctions, concluding that they had not established the required legal thresholds. The case was to be prioritized for substantive hearing, but the applicants' immediate requests were denied.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The High Court of Kenya ruled against the applicants, Norah Bosibori Mang’erere and her children, who sought to prevent the respondent from disposing of the remains of the deceased and to compel repatriation to Kenya. The ruling underscored the legal complexities surrounding jurisdiction and customary burial rights, particularly in the context of international law and the Covid-19 pandemic. The decision highlights the challenges faced by families in cross-border burial disputes and sets a precedent for similar future cases involving jurisdiction and customary law.

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