Laitobir v Tarkwen (Enviromental and Land Originating Summons E001 of 2025) [2026] KEELC 3263 (KLR)
The bottom line
#The court allowed a land burial injunction case to be withdrawn without costs because the burial had already happened, confirming withdrawal is a party's right.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of withdrawal dated 28th May 2026 should be allowed given that the application has been overtaken by events
- 2.Whether the orders of 21st January 2026 should be varied to substitute Sangalo Division for Kabiyet Division and to include the Officer Commanding Police Station, Kabiyet to provide security during the visit
Key legal issues
#Whether withdrawal of an application should be permitted where it has been overtaken by events
Yes - withdrawal is allowed as a matter of right subject to costs, and the court's objective is to do justice to the parties
The applicant sought to withdraw the Notice of Motion dated 18th May 2026 because the remains of the deceased had already been interred on the suit land, rendering the application moot. There was no opposition to the withdrawal. Relying on Robert Mutiso Lelli v Kenya Medical Training College, the court held the right of withdrawal ought to be allowed as a matter of right subject to costs, guided by section 3 of the Environment and Land Court Act and sections 3 and 3A of the Civil Procedure Act.
Whether the orders of 21st January 2026 could be varied to reflect administrative changes of divisions in Nandi County
Yes - the orders were varied so that Sangalo Division replaced Kabiyet Division, and the OCS Kabiyet was inserted as order 4 to provide security during the visit
Counsel informed the court of new developments relating to changes of divisions in Nandi County, and prayed that Sangalo Division be captured in lieu of Kabiyet Division in order (b) of the orders of 21st January 2026, and that the Officer Commanding Police Station, Kabiyet be included as order 4 to provide security during the visit. There being no opposition, the court allowed the variation.
Legal principles established
#- The right to withdraw or discontinue proceedings ought to be allowed as a matter of right, subject to any issues of costs claimable by the respondent
Court orders
#- 1.The application dated 18th May 2026 is marked as withdrawn with no orders as to costs
- 2.The orders of 21st January 2026 are varied to the extent that Sangalo Division replaces Kabiyet in order number (b) of the said orders
- 3.The Officer Commanding Police Station, Kabiyet is introduced as order 4 in the orders of 21st January 2026, to provide security during the visit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 3 of the Environment and Land Court Act 2015 and sections 3 and 3A of the Civil Procedure Act (Chapter 21, Laws of Kenya)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The application dated 18th May 2026, is hereby marked as withdrawn with no orders as to costs.
The orders of 21st January 2026 herein be varied to the extent that the Division namely Sangalo to replace Kabiyet in order number (b) of the said orders and that the Oficer Commanding Police Station, Kabiyet to provide security during the visit, be introduced or inserted as order 4 in the same orders.
………the right to withdrawal (sic) discontinue proceedings……ought to be allowed as a matter of right subject to any issues of costs which can be claimed by the respondent if any…….'
Issues in the judgment
#The judgment references applications dated 18th May 2026 and orders of 21st January 2026, yet the judgment itself is dated 28th May 2026 - dates appear internally consistent but the case number is not disclosed in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Laitobir v Tarkwen (Enviromental and Land Originating Summons E001 of 2025) [2026] KEELC 3263 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3263/eng@2026-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.