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ELCDismissedELC MISC JR NO. 114 OF 2010· [2025] KEELC 7781 (KLR)

Republic v County Government of Mombasa & 3 others; Andima (Ex parte Applicant); Abdalla and Abdalla (As as administrators of the Estate of Abdulhakim Abdalla) (Interested Party) (Environment and Land Judicial Review Miscellaneous Application 114 of 2010) [2025] KEELC 7781 (KLR)

Environment and Land Court
12 November 2025
1,570 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that an interested party in a case cannot ask the court to strike out another party's pleadings.

What this practically means

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Executive summary

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The interested party in this long-running judicial review matter moved the court by notice of motion dated 30th January 2025, seeking to strike out the ex parte applicant's Amended Notice of Motion dated 3rd December 2024 on three alternative grounds: that the amendment violated Order 53 Rule 4(2) of the Civil Procedure Rules; that the amended application amounted to a second trial rather than the de novo retrial ordered by the Court of Appeal in Andima v Municipal Council of Mombasa on 15th March 2024; and that specific grounds were introduced without leave under Order 53 Rule 1(1). The ex parte applicant opposed, arguing the interested party lacked locus standi, that Order 53 Rule 4(2) does not prohibit amending a notice of motion, and that the amendment was necessary to substitute the deceased interested party's legal representatives and bring on board the County Government of Mombasa. The court framed four issues and determined locus standi as a preliminary jurisdictional question. Applying the Supreme Court's decision in Trusted Society of Human Rights Alliance v Mumo Matemu, it held that an interested party cannot seek to strike out pleadings on grounds of defectiveness, and that this binding authority could not be ignored without violating stare decisis. The other issues were therefore not determined. The application was struck out with costs to the ex parte applicant.

Key legal issues

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01

Whether the interested party has locus standi to seek striking out of the ex parte applicant's pleadings

Holding

The interested party lacks capacity; the application is incompetent

Reasoning

Relying on the Supreme Court's decision in Trusted Society of Human Rights Alliance v Mumo Matemu, the court held that a suit is owned by the parties, and an interested party joined to a suit cannot seek to strike out pleadings on grounds of defectiveness. The decision binds this court under the doctrine of stare decisis; ignoring it would encourage a nullity, citing Macfoy v United Africa Co. Ltd. Locus standi is a preliminary jurisdictional issue that had to be determined first, and its resolution disposed of the application.

p. 4
02

Whether the remaining grounds of the application (amendment under Order 53 Rules 4(2) and 1(1), and the second-trial argument) could be determined

Holding

Not determined, as the application failed on the preliminary locus standi issue

Reasoning

The court held that locus standi goes to the jurisdiction of the court and must be dealt with before considering other issues. Having found that the interested party lacked capacity to bring the application, the court found it unnecessary to reach the merits of the amendment and retrial arguments, dismissing the application in its entirety.

p. 4

Legal principles established

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  • An interested party joined to a suit cannot be heard to seek orders to strike out pleadings on grounds of defective pleadings.
  • Procedural lapses that do not go to jurisdiction or occasion prejudice should not lead to striking out pleadings.
  • Costs follow the event under section 27 of the Civil Procedure Act.

Court orders

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  1. 1.That the application by the interested party dated 30th January 2025, is without merit, and is hereby struck out.
  2. 2.The interested party to bear the costs of the ex-parte applicant.

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 4(2)
  • Civil Procedure RulesOrder 53 Rule 1(1)
  • Constitution of KenyaArticle 159
  • Environment and Land Court Act No. 19 of 2011Section 19(1)
  • Civil Procedure Act Chapter 21, Laws of KenyaSection 27

Cases cited (4)

  • Andima v Municipal Council of Mombasa & 4 others
    Civil Appeal Number 149 of 2018
  • Trusted Society of Human Rights Alliance vs Mumo Matemu & 5 Others
    (2014) eKLR
  • Nicholas Kiptoo Arap Korir Salat versus Iebc & Others
    C.A Civil Appeal No 228 Of 2013 [2013] eKLR
  • Macfoy versus United Africa Co. Ltd
    [1961] 3 ALL ER
On appeal from
Court of Appeal
Andima v Municipal Council of Mombasa & 4 others Civil Appeal Number 149 of 2018
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules; Article 159 of the Constitution; Environment and Land Court Act No. 19 of 2011, section 19(1)

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, "Republic v County Government of Mombasa & 3 others; Andima (Ex parte Applicant); Abdalla and Abdalla (As as administrators of the Estate of Abdulhakim Abdalla) (Interested Party) (Environment and Land Judicial Review Miscellaneous Application 114 of 2010) [2025] KEELC 7781 (KLR)", Case Analysis (2025). ELC MISC JR NO. 114 OF 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7781/eng@2025-11-12

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