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ELCDismissedELC Case No. 124 of 2018· [2026] KEELC 5540 (KLR)

Josphat Kole Daniel v Neurkirchener Mission (AIC Church Ngao) & Another

Environment and Land Court of Kenya
17 September 2026
709 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling on the plaintiff's Notice of Motion dated 15/9/2026 in a long-running land suit before the Environment and Land Court at Malindi. The plaintiff sought interlocutory orders to halt the interment of the 2nd Defendant's deceased daughter's remains and to restrain the 2nd Defendant from interfering with, entering upon, occupying, excavating, developing or otherwise dealing with the suit property pending the hearing of the suit. Mwangi Njoroge J declined the application. The court noted that in the early stages of the litigation Olola J had, in a ruling delivered on 5/4/2019, dealt with an application by the same plaintiff seeking to bar the interment of the 2nd Defendant's deceased wife's remains on the suit property, and had observed that the plaintiff had annexed nothing establishing a nexus between the unadjudicated one acre allegedly donated to the 1st Defendant and the registered parcel. That evidentiary position had not changed: a Land Surveyor's visit to the two parcels, ordered on 31/1/2024, had never taken place, leaving the court unable to determine 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 2nd Defendant's replying affidavit confirmed the daughter was to be interred on the same parcel where his wife's remains were interred seven years earlier. Holding that the application raised the same issue as the 2019 application, the court found it res judicata, applied Olola J's reasoning on the confusion of land numbering and Sections 24 and 26 of the Land Registration Act, and dismissed the application with costs.

Key legal issues

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01

Res judicata in successive interlocutory applications

Holding

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

Reasoning

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.

p. 3
02

Absence of evidence linking the claimed and registered parcels

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application dated 15/9/2026 is dismissed with costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (interlocutory application in a land suit)

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, "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.