https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3564

In re Karanja (Applicant) (Environment and Land Miscellaneous Case E005 of 2026) [2026] KEELC 3564 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3564 (KLR) Republic of Kenya In the Environment and Land Court at Nyandarua Environment and Land Miscellaneous Case E005 of 2026 JM Kamau, J June 11, 2026 In the matter of Peter Njiri Karanja Applicant Ruling (The suit in this case was commenced by way of a notice of motion.) 1.On 9/3/2026, the applicant filed an ex parte notice of motion of even date seeking that he be granted an order of exhumation of the body of Karanja Gichuri (Deceased) currently buried at LR No. Nyandarua/Kipipiri/6954 belonging to Muthumbi wa Kimani and a reburial of the same at Ol-kalou public cemetery by himself. 2.He further requests the Officer Commanding Kipipiri Police Station and the relevant Public Health Officer, Kipipiri be directed to supervise the exercise and facilitate the exhumation and reburial of the said body. He also prays for such other or further order as the court may deem just and expedient in the circumstances. 3.In the grounds on the face of the application and the undated sworn affidavit of the applicant, Peter Njiri Karanja, the deponent says that he was the owner of the suit land - Nyandarua/Kipipiri/6954 before he sold the same to the current owner, Muthumbi wa Kimani. He claims to have inherited the same from his father, the late David Karanja Gichiri. The grave was discovered by the current owner, Muthumbi wa Kimani when excavating the land. He depones that the remains belong to his late paternal uncle, Karanja Gichiri who died around the year 1998 aged about 80 years although he has no documents to substantiate this fact. His deceased uncle had no dependants and was wholly dependent on the applicant’s late father. He further depones that the current owner has requested him to exhume remains and that he is willing to do so if granted an order to that effect by the court. 4.I have gone through the application herein brought by way of a notice of motion without a parent pleading either by way of a petition, plaint or by way of an originating summons, I will first decide on one fundamental issue to determine whether there is really a suit before me. Should it be answered in the affirmative, then I will proceed to the other issues. The applicant seeks for orders of exhumation. These are very serious and grave issues which must be determined through a suit. I am of the view that matters such as the one before the court affect not only the applicant in the case but the entire society. 5.As I held in the case of Nyamira ELC Miscellaneous Case No. E007 of 2023, under order 3 rule 1 (1) of the Civil Procedure Rules:“every suit shall be instituted by presenting a plaint to the court, or in such other manner as may be prescribed.”Other ways of presenting a suit in court are by way of: - Judicial Review. Originating Summons. Petition. Memorandum of Appeal. Originating Motion. Appeal. 6.Not by way of a notice of motion. Miscellaneous Civil Application is not one of them. In the case of Fidelity Bank Limited vs John Joel Kanyali (2014) eKLR the court held as follows: -“……A notice of motion is not a manner prescribed for instituting a suit.It cannot be a pleading as defined in Cap 21 and its Rules. Accordingly, there is no suit before court which suit can sustain the notice of motion.” 7.Similarly, there is no suit in court that is capable of ascertaining the rights of either the applicant. In the instant motion, it is difficult to determine the rights of the applicant and he is undeserving of the prayers sought. No right can be determined by way of a notice of motion. A notice of motion is normally for interlocutory issues or execution or any other post – judgment process. Not to determine rights and therefore there is no suit before me to determine any rights and calling this court to jump the trial stage and proceed to execution under orders 22 and 23 of the Civil Procedure Rules is putting a cart before the horse. The law does not envisage a situation where you would execute before a right has been ascertained in a trial. 8.Accordingly, the notice of motion dated 9/3/2026 is a non-starter and the same is hereby stuck out since what is before the court christened as a suit is grossly incompetent, incurably defective and an abuse of the process of this court and the same is hereby struck out with costs. RULING DATED, SIGNED AND DELIVERED AT NYANDARUA THIS 11TH DAY OF JUNE, 2026.MUGO KAMAUJUDGEIn the presence of: -Court Assistant: Samson.Applicant’s Counsel: Mr. Njihia.