REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MALINDI ELC CASE NO. 124 OF 2018 JOSPHAT KOLE DANIEL …………………..……….…..….………………… PLAINTIFF VERSUS NEURKIRCHENER MISSION (AIC CHURCH NGAO) (Sued through its Trustees Francis B Tumaini Bahati, Kath Kazi Ijara and JAMES SHARA BUYA)..………………………………………………..1ST DEFENDANT DANSON BUYA MUNGATANA………………………………………..2ND DEFENDANT RULING 1. In the instant Notice of Motion application dated 15/9/2026, the Applicant is the Plaintiff, and he seeks not only to halt the interment of the 2nd Defendant’s deceased daughter’s remains, but also to restrain the 2nd Defendant from “in any manner whatsoever interfering with, entering upon, occupying, excavating, developing or otherwise dealing with the suit property” as per prayer No. 3. 2. The orders sought are meant to last till the hearing and determination of the present suit. 3. Certain factors however expressly militate against the grant of the orders prayed for in the motion. 1 | Page E L C N O 1 2 4 O F 2 0 1 8 - R U L I N G O N 1 7 T H S E P T 2 0 2 6
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4. I have perused the record and found that in the early stages of this litigation, my brother Olola J. dealt with the application filed by the same party, the Plaintiff herein, seeking to bar the interment of the 2 nd Defendant’s deceased wife’s remains on the suit property. 5. The court observed in the Ruling delivered on 5/4/2019 (at paragraph 18) that the Plaintiff did not annex anything to his application from which the court could draw any nexus between the unadjudicated one acre piece of land allegedly donated to the 1 st Defendant and the parcel of land now registered in the 3 rd Defendant’s name (now named as the 2nd Defendant). 6. The situation has remained the same as when the court made that dictum. The visit to the two parcels by the Land Surveyor, which this court ordered on 31/1/2024 has never taken place. 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. 7. I am thus in the same predicament as that Hon Olola J found himself in on 5/4/2019 when he considered the matter and delivered the ruling on the application dated 1/4/2019 seeking to bar the interment of the 2nd Defendant’s wife’s remains on the land they intended to bury them, whichever land that was. 2 | Page E L C N O 1 2 4 O F 2 0 1 8 - R U L I N G O N 1 7 T H S E P T 2 0 2 6
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8. Consequently, I find myself unable to grant the orders sought, especially bearing in mind that at paragraph 20 of the 2nd Defendant’s Replying Affidavit, it is expressly stated that the remains of the daughter of the 2nd Defendant are intended to be interred, not on another parcel of land, but on the same parcel of land on which the remains of his wife were interred seven years ago. 9. The upshot of the foregoing is that the application dated 15/9/2026 raises an issue similar to that raised in the application of 1/4/2019 whether the 2nd Respondent ought to be barred by this Court from interring the remains of his kin on the land he is registered as owner of. Thus, 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. 10. 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. Dated, signed and delivered at Malindi on this 17 th Day of September 2026. MWANGI NJOROGE JUDGE, ELC MALINDI. 3 | Page E L C N O 1 2 4 O F 2 0 1 8 - R U L I N G O N 1 7 T H S E P T 2 0 2 6
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