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ELCDismissed· [2025] KEELC 6329 (KLR)

Seii & 10 others v Nairobi County Govt & 8 others (Environment and Planning Petition E019 of 2024) [2025] KEELC 6329 (KLR)

Environment and Land Court
25 September 2025
AOA. Omollo
2,041 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that public officers accused of negligence cannot escape a lawsuit early simply by claiming they acted in their official capacity.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Nairobi delivered by A. Omollo, J, on 25th September 2025. The 1st to 5th Respondents/Applicants moved the court by notice of motion dated 10th June 2025 seeking the striking out of the 2nd, 3rd and 4th respondents from a petition concerning activities on Nairobi Block 171/392, relying on section 89 of the Physical and Land Use Planning Act, which immunises public officers acting in good faith and without negligence, and on Order 1 Rule 10(2) of the Civil Procedure Rules. They argued the officers were sued only for official acts, that their employer (the 1st Respondent county government) was already a party, and that no bad faith, malice or ultra vires conduct had been substantiated. The Petitioners, through a replying affidavit of Jerotich Seii, opposed the motion, contending that the petition pleads particulars of negligence and bad faith in Parts C and D, that the officers are sued in both official and individual capacities for failure to discharge statutory duties, and that the supporting affidavits were sworn by Wilfred Masinde, an unauthorised deponent. The court framed a single issue: whether the 2nd-4th Respondents are necessary parties. Applying the DT Dobie caution on striking out, the court held it could not, on an interlocutory application, determine whether the alleged acts were done in official capacity or in good faith; the burden lay on the applicants and was not discharged. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the 2nd-4th Respondents are necessary parties to the suit notwithstanding section 89 of PLUPA

Holding

The application to strike them out was premature; triable issues on good faith and individual liability mean they are necessary parties.

Reasoning

The petitioners pleaded particulars of negligence and bad faith in Parts C and D of the petition. The applicants bore the burden of showing all alleged breaches occurred in their official capacities and relied only on their employment by the 1st Respondent and absence of demonstrated negligence. That burden was not discharged, and the court could not resolve good faith or individual liability on an interlocutory application without usurping the trial court's function.

p. 5

Legal principles established

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  • The power to strike out a party must be exercised with caution and without embarking on the merits.
  • Statutory immunity under section 89 of PLUPA cannot be determined at an interlocutory stage where particulars of negligence or bad faith have been pleaded.

Court orders

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  1. 1.The 2nd - 4th Respondents' application dated 10th June 2025 is dismissed
  2. 2.Costs in the cause
Jurisdiction invoked
Original jurisdiction over an interlocutory notice of motion dated 10th June 2025 under Order 1 Rule 10(2) of the Civil Procedure Rules and section 89 of the Physical and Land Use Planning Act

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, "Seii & 10 others v Nairobi County Govt & 8 others (Environment and Planning Petition E019 of 2024) [2025] KEELC 6329 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6329/eng@2025-09-25

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