Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherELC Petition No. E032 of 2021 (consolidated with E033 of 2021)· [2025] KEELC 4505 (KLR)

Saleh & 3 others v National Land Commission & 2 others; Ministry of Tourism and Wildlife & 7 others (Interested Parties) (note) (Environment & Land Petition E32 of 2021 & Petition E33 of 2021 (Consolidated)) [2025] KEELC 4505 (KLR)

Environment and Land Court
13 June 2025
4,766 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

A Kenyan environmental court refused to throw out a stalled land case over Kipini Conservancy, ruling the delay was careless but not excessive, and the case will now be heard.

What this practically means

#

Executive summary

#
The Environment and Land Court at Malindi (Mwangi Njoroge J) determined two applications seeking dismissal of consolidated Petitions E032 and E033 of 2021 for want of prosecution: one by the 3rd Respondent dated 5/7/2024 and one by the 7th and 8th Interested Parties dated 16/9/2024. The petitions concern the proposed compulsory acquisition of Kipini Conservancy in Lamu by the National Land Commission on behalf of the 2nd Respondent for military purposes, raising alleged environmental concerns in the Tana delta ecosystem, a listed Ramsar site. The petitioners attributed the delay of over a year since the joinder ruling of 9/6/2023 to the illness and death of the 2nd Petitioner and to intimidation campaigns allegedly orchestrated by Omar Sherman, director of the 7th Interested Party. The court found these explanations implausible and an afterthought, since all petitioners were represented by counsel. Nevertheless, applying the principles in Argan Wekesa Okumu v Dima College and noting that the dismissal applications were filed within days of the one-year threshold lapsing under Order 17 Rule 2, the court held the delay was inexcusable but not inordinate. Emphasising the ELC's environmental mandate, the in dubio pro natura principle, and the significant public-interest environmental issues raised by the petition, the court declined to dismiss the petitions, ordered that they be heard on their merits on an expedited basis, fixed a mention for 30 October 2025, and awarded the applicants costs of the two applications.

Key legal issues

#
01

Whether the consolidated petitions should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules

Holding

Dismissal refused: the delay was inexcusable but not inordinate, and the environmental significance of the petition justified sustaining it

Reasoning

The court accepted that the petitioners failed to offer plausible reasons for the delay, dismissing illness, death and intimidation excuses as afterthoughts since all petitioners were represented. However, applying the Argan Wekesa Okumu principles, the one-year threshold had only just elapsed when the dismissal applications were filed, and the court could not tell how much longer the petitioners would have remained inactive. Weighing the environmental and public-interest stakes, the court declined dismissal and ordered expedited hearing.

p. 9
02

Whether the petitioners' explanations for the delay were reasonable

Holding

No - the reasons were implausible and an afterthought

Reasoning

The 1st Petitioner cited the illness and death of the 2nd Petitioner plus litigation initiated by Omar Sherman; the 3rd and 4th Petitioners cited intimidation and the need to amend the petition. The court held that all petitioners were represented by able counsel who could have progressed the suit regardless, and that these explanations were raised only after the dismissal applications were filed.

p. 7

Legal principles established

#
  • The applicant for dismissal for want of prosecution bears the burden of showing the delay is inordinate, inexcusable and prejudicial; the court's power is discretionary and each case turns on its own facts
  • In environmental matters before the ELC, the seriousness of a delay in a dismissal-for-want-of-prosecution application is assessed from the length of delay after the one-year statutory period has elapsed, and the significance of the environmental issues may justify sustaining the suit

Court orders

#
  1. 1.The applications dated 5/7/2024 and 16/9/2024 are disallowed
  2. 2.The petition shall be heard on its merits
  3. 3.The petition shall be mentioned on 30th October 2025 for directions as to hearing
  4. 4.The petitioners shall pay to the applicants the costs of the two applications dated 5/7/2024 and 16/9/2024

Authorities

#

Legislation

  • Constitution of KenyaArticle 159(2)(b), 159(2)(d), 67(2)(h)
  • Civil Procedure Rules, 2010Order 17 Rule 2(1), 2(3), Rule 1(1) and (3); Order 24 Rule 3(1) and (2)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Environment and Land Court ActSection 19(2)
  • County Governments Act 2012Section 110(1)

Cases cited (21)

  • Nelly Chelangat Mutai v Joseph Waititu Mwangi & Others
    [2018] eKLR
  • Nilani v Patel & Others
    [1969] EA 341
  • Mobile Kitale Service Station v Mobil Oil Kenya Limited & another
    [2004] eKLR
  • Birkett v James
    [1978] A.C. 297; (1977) 2 ALL ER 801
  • Utalii Transport Company Limited & 3 Others v NIC Bank Ltd & Another
    [2014] eKLR; [2014] KEHC 7255 (KLR)
  • Fred Osano Okeyo v Simon Omare & Another
    Civil Appeal No. E165 of 2022
  • Argan Wekesa Okumu v Dima College Limited & 2 Others
    [2015] KEHC 7006 (KLR)
  • Mwangi S. Kimenyi v AG & Another
    [2014] KEHC 4220 (KLR)
  • Susan Gachambi Kanuri & George Kanuri v British American Insurance Co. Ltd
    (Civil Case 419 of 2003) [2014] KEHC 1957 (KLR)
  • Re Winship
    397 US 358 [1970]
  • Daniel Kyura Kiragu v Papillon Lagoon Reef Hotel & another
    [2020] KEELRC 80 (KLR)
  • Kokwo v Aokor
    (Environment and Land Appeal E016 of 2022) [2023] KEELC 20783 (KLR)
  • Beijing Industrial Designing & Researching Institute v Lagoon Development Limited
    [2015] KECA 365 (KLR)
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others
    [2014] KESC 6 (KLR)
  • John Wekesa Khaoya v AG
    [2013] KEHC 6082 (KLR)
  • Ivita v Kyumbu
    [1984] KLR 441
  • Nilesh Premchand Mulji Shah & another t/a Ketan Emporium v M.D Popat & Others
    [2016] eKLR
  • Allen v Sir Alfred McAlpine & Sons
  • Alloys Kevin Chepkwony v Chief Land Registrar, Nairobi & Others
    [2012] KEHC 3556 (KLR)
  • [particulars withheld] v EMN & Another
    [2019] eKLR
  • Austin Securities v Northgate and English Stores Ltd
    [1969] 1 WLR 529
Jurisdiction invoked
Order 17 Rule 2(1) and 2(3) of the Civil Procedure Rules, 2010; Section 19(2) of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Saleh & 3 others v National Land Commission & 2 others; Ministry of Tourism and Wildlife & 7 others (Interested Parties) (note) (Environment & Land Petition E32 of 2021 & Petition E33 of 2021 (Consolidated)) [2025] KEELC 4505 (KLR)", Case Analysis (2025). ELC Petition No. E032 of 2021 (consolidated with E033 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4505/eng@2025-06-13

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