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ELCDismissed· [2025] KEELC 5470 (KLR)

Ethics and Anti-Corruption Commission v Mengech & 4 others (Environment and Land Case 265 of 2018) [2025] KEELC 5470 (KLR)

Environment and Land Court
23 July 2025
2,160 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused a defendant's bid to file a defence eight years late, ruling that parties—not their lawyers—must keep their cases moving.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (M. A. Odeny, J) determines the 1st Defendant's Notice of Motion dated 15th April 2025 seeking leave to file a Statement of Defence out of time, and his Preliminary Objection dated 30th April 2025. The Preliminary Objection argued that the suit was fatally defective for want of a written contract as required by Section 3(3) of the Law of Contract Act, and that the title to the suit property was issued to a person (Harun Ngeny Kipnyango Mengech) different from the 1st Defendant. The court, applying the test in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd, found that the objection raised factual issues requiring evidence at trial and dismissed it. On the application for leave to defend, the court noted the 1st Defendant was served with summons on 30th August 2018, entered appearance and filed Grounds of Opposition, but never filed a defence. Rejecting his explanation blaming his former advocates, the court held that cases belong to parties, not advocates, and found the delay deliberate, possibly because he had sold his interest in the suit land. Applying principles from Thorn PLC v Macdonald as cited in International Air Transport Association v Roskar Travel Limited, the court found the 8-year delay insufficiently explained. Both the application and the preliminary objection were dismissed with costs. The suit proceeds to trial.

Key legal issues

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01

Whether the preliminary objection under Section 3(3) of the Law of Contract Act meets the Mukisa Biscuit threshold

Holding

Dismissed; it requires factual determination at trial

Reasoning

The objection alleged absence of a written contract as required by Section 3(3) of the Law of Contract Act. The court held that ascertaining whether a contract existed with Jim Choge requires examining evidence through trial of the main suit, so the objection is not a pure point of law under the Mukisa Biscuit test.

p. 4
02

Whether the 1st Defendant should be granted leave to file a defence out of time

Holding

Application dismissed; delay of 8 years unexplained and deliberate

Reasoning

The defendant was served in 2018, entered appearance and filed grounds of opposition but never filed a defence. The court found the blame on previous advocates unconvincing, noting the party must diligently follow up its case. The delay was deliberate, possibly because he sold his interest in the suit land, and was not sufficiently explained.

p. 5

Legal principles established

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  • A preliminary objection must be a pure point of law; where determination requires examination of evidence, it fails
  • Cases belong to parties, not advocates; a party must follow up its matter and file documents within stipulated timelines

Court orders

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  1. 1.The 1st Defendant's Notice of Motion Application dated 15th April, 2025 is hereby dismissed with costs.
  2. 2.The 1st Defendant's Preliminary Objection dated 30th April, 2025 is hereby dismissed with costs.

Authorities

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Legislation

  • Law of Contract Act (Chapter 23)Section 3 (3)
  • Constitution of KenyaArticles 47 and 50
  • Fair Administrative Action ActSection 4
  • Civil Procedure ActSection 27

Cases cited (12)

  • Mukisa Biscuit Manufacturing Company Limited vs West Ends Distributors Ltd
    (1969) EA 696
  • Giciem Construction Limited vs Amalgamated Trade & Services
    LLR No 103 CAK
  • Job Kiloch vs Nation Media Group Limited
  • Salaba Agencies Limited & Michael Rioro
    (2015) eKLR
  • Egal Mohamed Osman vs Inspector General of Police & 3 others
    (2015) eKLR
  • Judicial Service Commission vs Gladys Boss Shollei & Another
    (2014) eKLR
  • Baker vs Canada (Minister of Citizenship & Immigration)
    2 SCR 8176
  • Nicholas Kiptoo Korir Arap Salat vs IEBC & 7 others
    [2014] eKLR
  • CFC Stanbic Limited vs John Maina Githaiga & Another
    [2013] eKLR
  • Kabogo vs Gitau
    (Civil Appeal 82 of 2019) [2025] KECA 193
  • Thorn PLC v Macdonald
  • International Air Transport Association & another v Roskar Travel Limited & 3 others
    (Civil Case E457 of 2020) [2022] KEHC 200 (KLR)
Jurisdiction invoked
Not stated in judgment

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, "Ethics and Anti-Corruption Commission v Mengech & 4 others (Environment and Land Case 265 of 2018) [2025] KEELC 5470 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5470/eng@2025-07-23

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