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ELCAllowedNotice of Motion dated 18th May 2026 (Kapsabet ELC)

Tuitoek v Tarkwen (Enviromental and Land Originating Summons E006 of 2025) [2026] KEELC 3265 (KLR)

Environment and Land Court
28 May 2026
510 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court let a burial injunction application be withdrawn without costs and adjusted earlier orders after the burial had already happened.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Kapsabet delivered by G M A Ongondo, J, on 28th May 2026. The applicant/plaintiff, through Cheruiyot Lagat and Partners Advocates, had moved the court by Notice of Motion dated 18th May 2026 seeking an injunction restraining the respondents from burying the remains of Susan Tarkwen (Deceased) on 5.75 acres of land reference number Nandi/Kebulonik/596, a resultant portion of LR No. Nandi/Kebulonik/12. When the matter came up, Mr Cheruiyot Bethwel, learned counsel for the applicant, informed the court that a Notice of Withdrawal dated 28th May 2026 had been filed in Kapsabet ELCOS No. E001 of 2025, which concerned the same subject matter and the same defendants/respondents. He further noted that the application had been overtaken by events, including the interment of the Deceased's remains on the portion of the suit land, and sought its withdrawal. Counsel also prayed for variation of the orders of 21st January 2026 to capture Sangalo Division in lieu of Kabiyet Division, following changes of divisions in Nandi County, and for the Officer Commanding Police Station, Kabiyet to be included to provide security during the visit. There was no opposition. Relying on the Supreme Court decisions in Robert Mutiso Lelli v Kenya Medical Training College and John O. Ochanda v Telkom Kenya Ltd, and on sections 3 of the ELC Act and 3 and 3A of the Civil Procedure Act, the court allowed the withdrawal with no orders as to costs and varied the orders of 21st January 2026 as sought.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Notice of Motion dated 18th May 2026 should be marked as withdrawn
  2. 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

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01

Right of withdrawal of proceedings

Holding

The application was withdrawn as a matter of right, with no opposition, and with no orders as to costs.

Reasoning

Counsel for the applicant sought leave to withdraw the Notice of Motion dated 18th May 2026 on the ground that it had been overtaken by events, including the interment of the Deceased on the suit land, and a Notice of Withdrawal had been filed in Kapsabet ELCOS No. E001 of 2025 on the same subject matter. There being no opposition, and relying on the Supreme Court's pronouncement in Robert Mutiso Lelli, the court allowed the withdrawal as of right.

p. 2
02

Variation of prior orders

Holding

The orders of 21st January 2026 were varied to substitute Sangalo Division for Kabiyet Division and to add the OCS Kabiyet to provide security during the visit.

Reasoning

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 to provide security during the visit. There being no opposition, the court found the variation merited, guided by the overriding objective of doing justice under section 3 of the ELC Act and sections 3 and 3A of the Civil Procedure Act.

p. 2

Legal principles established

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  • A party has a right to withdraw or discontinue proceedings, subject to any issues of costs claimable by the respondent.

Court orders

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  1. 1.The application dated 18th May 2026 is marked as withdrawn with no orders as to costs
  2. 2.The orders of 21st January 2026 be varied so that Sangalo Division replaces Kabiyet in order number (b) of the said orders
  3. 3.The Officer Commanding Police Station, Kabiyet to provide security during the visit be introduced or inserted as order 4 in the orders of 21st January 2026

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court Act, 2015, section 3; Civil Procedure Act (Cap 21), sections 3 and 3A

Quotable passages

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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 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…….'
p. 2right of withdrawal
The application dated 18th May 2026,is hereby marked as withdrawn with no orders as to costs.
p. 2final orders - withdrawal
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
p. 2final orders - variation

Issues in the judgment

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minor

Dates of the application and judgment (2026) and the prior orders (2026) appear to be prospective/future dates relative to typical court records, possibly typographical errors in the judgment.

minor

Name of the second authority cited is printed as 'John O.Ochanda' without a space after the initial.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Tuitoek v Tarkwen (Enviromental and Land Originating Summons E006 of 2025) [2026] KEELC 3265 (KLR)", Case Analysis (2026). Notice of Motion dated 18th May 2026 (Kapsabet ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3265/eng@2026-05-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.