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ELCDismissedNotice of Motion dated 5th December 2024· [2025] KEELC 4101 (KLR)

Chepkoiywo (Suing as the Legal Representative of the Estate of the Late Rosemary Nyambura Gachunia - Deceased) v Karuba & 49 others (Environment & Land Case 34 of 2024) (Environment and Land) [2025] KEELC 4101 (KLR)

Environment and Land Court
29 May 2025
MOM.C. Oundo
1,559 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court dismissed a stay of execution because the applicants never filed written submissions as ordered—missing court deadlines can sink your case.

What this practically means

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Executive summary

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Following a judgment delivered on 14th November 2024 in which the court found the Defendants' title deeds to the suit land fraudulently acquired, ordered their cancellation, and directed vacuation of the suit parcel within 45 days failing eviction, the Defendants filed a Notice of Motion dated 5th December 2024 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 46 rule 6(1) & (2) and Order 51 rule 1 of the Civil Procedure Rules seeking stay of execution pending an intended appeal to the Court of Appeal. The supporting affidavit was sworn by their advocate, Hakim Suleiman Rajab, who deponed that the Defendants would suffer substantial loss through eviction of hundreds of families, that the appeal had chances of success, and that they were willing to furnish security. The Plaintiff opposed, arguing that no Defendant had sworn an affidavit, that no substantial loss or nugatory appeal was demonstrated since land cannot move, and proposed conditions of depositing original titles and Ksh 5,000,000 as security. Directions were taken for disposal by written submissions, with time later extended; only the Respondent complied. Relying on the Elaki and Rowlands Ndegwa decisions, the court held that failure to file submissions as ordered amounts to failure to prosecute an application, demonstrating inertia and inordinate delay, and dismissed the motion with costs on 29th May 2025.

Key legal issues

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Consequence of failure to file written submissions as directed by the court

Holding

The application was dismissed for want of prosecution because the Applicants failed to file submissions even after time was extended

Reasoning

The parties had taken directions to dispose of the application by written submissions. The court extended the compliance period by a further 14 days, yet only the Respondent complied. Filing of written submissions is the norm under the new constitutional dispensation, and failure to file demonstrates inertia, inordinate delay and lack of interest, warranting dismissal of the motion.

p. 5

Legal principles established

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  • An applicant who fails to file submissions as ordered is deemed to have failed to prosecute the application, which is liable for dismissal
  • Dismissal for want of prosecution is invited where there is delay in prosecution, the respondent is prejudiced, and no adequate reasons for inactivity are advanced

Court orders

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  1. 1.The Notice of Motion dated 5th December 2024 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 46 rule 6(1) & (2)
  • Civil Procedure RulesOrder 51 rule 1

Cases cited (3)

  • Elaki v District Land Registrar Vihiga & another (Civil Appeal 220 of 2019)
    [2021] KECA 340 (KLR) (17 December 2021)
  • Rowlands Ndegwa and 4 Others v County Government of Nyeri and 3 Others; Agriculture, Fisheries and Food Authority & Another (Interested Parties)
    [2020] eKLR
  • Winnie Wanjiku Mwai v Attorney General & 3 others
    [2016] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act, Order 46 rule 6(1) & (2) and Order 51 rule 1 of the Civil Procedure Rules

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, "Chepkoiywo (Suing as the Legal Representative of the Estate of the Late Rosemary Nyambura Gachunia - Deceased) v Karuba & 49 others (Environment & Land Case 34 of 2024)  (Environment and Land) [2025] KEELC 4101 (KLR)", Case Analysis (2025). Notice of Motion dated 5th December 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4101/eng@2025-05-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.