Makundi v Makundi & another (Environment and Land Case 764 of 2013) [2025] KEELC 5724 (KLR)

The ruling sought to be reviewed was delivered on 31st October 2024 and the application was dated 21st January 2025, a delay of less than three months. Guided by the Court of Appeal decision in Stephen Githua Kimani v Nancy Wanjira Waruingi, the court held that although unexplained delays of even three months have been found unreasonable, the Applicant attached a progress report from his doctor showing he was seeking care for his mental well-being, which constituted sufficient explanation.

The court found the Applicant had not expressly stated the ground of review. Being represented by counsel since 2013 under the new constitutional dispensation, he was presumed aware of Article 159(2) of the Constitution. The disobeyed order was made pursuant to an interlocutory application, not a determination of ownership, and the Applicant would still have the opportunity to deploy the clan decisions at the hearing of the substantive suit.

Relying on Hadkinson v Hadkinson and K.G.G.A v Francis Atwoli citing Clarke v Chadburn, the court reaffirmed the settled position that the plain obligation of every person against whom an order is made is to obey it unless and until it is discharged. The Applicant's remedy was to apply to vary or discharge the order, not to disobey it while asserting that the clan had allocated him the land.

The court noted the Applicant asked for suspension on grounds of lack of capacity arising from Kamba cultural taboos against exhumation, but pointed out that even a long-term suspension would not address the existing contempt. The parties were before court when the order was issued in the presence of his advocate, and the rule of law required obedience.