https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3265

Tuitoek v Tarkwen (Enviromental and Land Originating Summons E006 of 2025) [2026] KEELC 3265 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3265 (KLR) Republic of Kenya In the Environment and Land Court at Kapsabet Enviromental and Land Originating Summons E006 of 2025 GMA Ongondo, J May 28, 2026 Between Nehemiah Kiplagat Tuitoek Plaintiff and Susan Tarkwen Defendant Ruling 1.The applicant/plaintiff through Cheruiyot Lagat and Partners Advocates commenced an application by way of Notice of Motion dated 18th May 2026, seeking, inter alia, an order of injunction against the respondents not to bury the remains of Susan Tarkwen (Deceased) on 5.75, acres of the suit land reference number Nandi/Kebulonik/596, a resultant portion of LR No. Nandi/Kebulonik/12. 2.Mr Cheruiyot Bethwel learned counsel for the plaintiff/applicant referred to the Notice of withdrawal dated 28th May 2026 by the applicant/plaintiff filed in Kapsabet ELCOS No. E001 of 2025 pertaining to the same subject matter and same defendants /respondents. 3.So, counsel stated that since the Notice of Withdrawal is in place and the application dated 18th May 2026 has been overtaken by events including the interment of the remains of the Deceased on the portion of the suit land, the withdrawal of the application be allowed. 4.Further, counsel told the court that there are new developments relating to changes of divisions in Nandi County. Therefore, he prayed for Sangalo Division in lieu of Kabiyet Division as stated in order number (b) of the orders of 21st January 2026 be captured hence, the orders be varied accordingly. Also, that the Officer Commanding Police Station, Kabiyet to provide security during the visit be included as order number 4 in the said orders. 5.Clearly, there is no opposition to the withdrawal of the application and variation of the orders as sought by the applicant/plaintiff. 6.This Honourable Court subscribes to the Supreme Court of the Republic of Kenya decision in the case of Robert Mutiso Lelli vs Kenya Medical Training Colege & 2 others (2021) eKLR where the late M K Ibrahim (SCJ) made reliance to the case of John O.Ochanda vs Telkom Kenya Ltd (2014) JELR 103822 (SC) thus;‘………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…….’ 7.The main objective of this court is to do justice to the parties before it as stipulated in section 3 of the Environment and Land Court Act 2015 (2011) and sections 3 and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya. 8.In the premises, the Notice of withdrawal of the application and variation of the orders, are steadfast and merited. 9.Thus, I hereby direct and order as follows;a.The application dated 18th May 2026,is hereby marked as withdrawn with no orders as to costs.b.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 Officer Commanding Police Station, Kabiyet to provide security during the visit, be introduced or inserted as order 4 in the same orders. 10.It is so ordered,. DATED AND DELIVERED AT KAPSABET THIS 28TH DAY OF MAY 2026G M A ONGONDOJUDGEPresent;Mr Cheruiyot Bethwel learned counsel for the Applicant/Plaintiff Walter Kipkorir, Court Assistant