Josphat Kole Daniel v Neurkirchener Mission (AIC Church Ngao) & Another
The bottom line
#The Environment and Land Court in Malindi blocked a landowner's bid to stop a burial on disputed land, ruling the same issue had already been decided in 2019.
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 plaintiff's Notice of Motion dated 15/9/2026 seeking to halt the interment of the 2nd Defendant's deceased daughter's remains and to restrain interference with the suit property should be granted pending hearing of the suit
- 2.Whether the application is res judicata, raising the same issue as the application dated 1/4/2019 determined by Olola J
Key legal issues
#Res judicata in successive interlocutory applications
The application dated 15/9/2026 raises the same issue as the application of 1/4/2019 (whether the 2nd Defendant may be barred from interring kin on land he is registered to own) and is therefore res judicata and dismissed
The court found that in 2019 Olola J dealt with an identical application by the same plaintiff seeking to bar interment on the suit property, and observed that no nexus was shown between the unadjudicated one acre allegedly donated and the registered parcel. The position is unchanged: the court-ordered surveyor's visit never took place, so the court remains in the same predicament. The 2nd Defendant's replying affidavit confirms the daughter is to be buried on the same parcel as the wife, interred seven years ago.
Absence of evidence linking the claimed and registered parcels
The court cannot grant injunctive relief because it remains in the dark as to whether parcel No. 115 referred to by the plaintiff is the same as Plot No. LR Tana Delta/Ngao/108 registered in the 2nd Defendant's name
The ruling of 5/4/2019 noted the plaintiff annexed nothing establishing a nexus between the unadjudicated one acre allegedly donated to the 1st Defendant and the parcel registered in the defendant's name. A Land Surveyor's visit ordered on 31/1/2024 never took place, so the evidentiary gap persists and the court cannot determine which land is in issue.
Legal principles established
#- An interlocutory application raising the same issue as one already determined between the same parties is res judicata and cannot be granted
- Sections 24 and 26 of the Land Registration Act on the effect of registration apply where a party seeks to bar burial on land registered in another's name
Court orders
#- 1.The application dated 15/9/2026 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (interlocutory application in a land suit)
Relief refused
#Interlocutory injunction halting interment of the 2nd Defendant's deceased daughter's remains and restraining the 2nd Defendant from interfering with, entering upon, occupying, excavating, developing or otherwise dealing with the suit property
The issue was already determined in the ruling of 5/4/2019 and is res judicata; the court remains unable to establish any nexus between the parcels due to unresolved confusion of land numbering
Costs
Application dismissed with costs (to the defendants)
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 15/9/2026 cannot thus be granted for the reason that the issue has already been determined and is thus res judicata, and the application is hereby dismissed with costs.
the same arguments relied on by Olola J regarding confusion of numbering, and the impact of Sections 24 and 26 of the Land Registration Act are automatically applicable in the instant scenario
This court is still in the dark as to whether the parcel No. 115 referred to by the Plaintiff is the same on the ground as parcel baptized Plot No LR Tana Delta/Ngao/ 108 and currently registered in the 2 nd Defendant's name.
Issues in the judgment
#Application dated 15/9/2026 in a suit numbered 2018; the heading and dates are internally consistent but the chronology (2018 suit, 2026 application) reflects a very long pendency
Judgment inconsistently refers to the 2nd Defendant as 'the 2nd Respondent'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josphat Kole Daniel v Neurkirchener Mission (AIC Church Ngao) & Another", Case Analysis (2026). ELC Case No. 124 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5540/eng@2026-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.