Tuitoek v Tarkwen (Enviromental and Land Originating Summons E006 of 2025) [2026] KEELC 3265 (KLR)
The bottom line
#A Kenyan court let a burial injunction application be withdrawn without costs and adjusted earlier orders after the burial had already happened.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
#Executive summary
#Key legal issues
#Right of withdrawal of proceedings
The application was withdrawn as a matter of right, with no opposition, and with no orders as to costs.
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.
Variation of prior orders
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.
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.
Legal principles established
#- A party has a right to withdraw or discontinue proceedings, 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#- 1.The application dated 18th May 2026 is marked as withdrawn with no orders as to costs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 be varied so that Sangalo Division replaces Kabiyet in order number (b) of the said orders
- 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
- Jurisdiction invoked
- Environment and Land Court Act, 2015, section 3; Civil Procedure Act (Cap 21), sections 3 and 3A
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.