JUDGMENT OF THE COURT
This is an appeal from the judgment and decree of the High Court (Makhandia, J., as he then was) dated 15th July, 2011 allowing an appeal from the judgment of the Resident Magistrate - Kisii in Kisii C.M. Civil Case No. 218 of 2009.
In the plaint filed in the subordinate court the plaintiff Hellen Nyaboke Otochi (“Hellen”), sought among other orders a declaration that she was the only legal wife of one Samwel Ogaro Mosoti (hereinafter "the deceased') with the right to bury the remains of the deceased; a declaration that one Cecilia Kerubo Samwel, the 1st defendant in that court ("Cecilia''), was holding land parcel No. Nyaribari Chache 1313/Boburia/3005 ("the suit land'') in trust for her and her son and a permanent injunction restraining the defendants and others from burying the remains of the deceased.
By the time the dispute went before the High Court on appeal, the parties appear to have settled the issue of the burial of the remains of the deceased and the onl…