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ELCDismissed· [2025] KEELC 8473 (KLR)

Serem v Erdemann Property Limited & another (Environment and Land Case Civil Suit 191 of 2018) [2025] KEELC 8473 (KLR)

Environment and Land Court
2 December 2025
AKA. Y. Koross
2,140 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to revive a land suit struck out over late filing, ruling deliberate delay and blaming your lawyer won't save you.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Machakos (Koross, J) determined two competing notices of motion dated 23/10/2024 arising from orders made on 17/10/2023, under which the plaintiff was given 30 days to file a paginated trial bundle, failing which his suit would stand struck out. The plaintiff filed his bundle on 24/11/2023, seven days late, and sought to set aside the striking-out orders and reinstate his suit filed on 4/10/2018, attributing the delay to a mistake of counsel - specifically that the holding counsel, Ms Maina, had not communicated the default clause to Mr Wandati. The second defendant sought costs of the suit, arguing the striking-out orders were self-executing. The court identified two issues: whether the orders should be set aside, and whether costs were payable. It reaffirmed that Order 11 CPR empowers courts to strike out suits for non-compliance but contains no reinstatement mechanism, and that any recourse lies in the court's inherent jurisdiction under Section 3A of the Civil Procedure Act. Relying on authorities including Kenya Tea Development Agency Management Services v AIG Kenya Insurance and Omar Sharrif v Freight Forwarders, the court held that striking out is a last resort for wilful default. Here, the plaintiff had been represented when the orders were issued, had a history of non-compliance over five years, and bore responsibility for the delay. The motion was dismissed and costs were awarded to the second defendant for the suit and both motions; no costs were awarded to the non-participating first defendant.

Key legal issues

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01

Whether the self-executing striking-out orders of 17/10/2023 should be set aside and the suit reinstated

Holding

The court declined to set aside the orders; the plaintiff's non-compliance was deliberate, and a mistake of counsel is not a ground for reinstatement.

Reasoning

Order 11 CPR permits striking out for non-compliance but has no provision for reinstatement. The court may invoke its inherent jurisdiction under Section 3A of the Civil Procedure Act, but only where the applicant justifies it. The plaintiff was represented when the orders were issued; the plea that holding counsel was unaware of the default clause was irrelevant. The suit had dragged for five years and the delay was deliberate, attributable to the plaintiff himself.

p. 4
02

Whether the second defendant is entitled to costs of the suit

Holding

The second defendant was awarded costs of the suit and both notices of motion; costs follow the event.

Reasoning

The suit was struck out for the plaintiff's non-compliance, so costs follow the event. The first defendant did not participate, so no costs were awarded to it. The plaintiff's argument that awarding costs without a final decision would punish him was rejected.

p. 4

Legal principles established

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  • A court has inherent power to enforce its own orders, including by striking out a suit for wilful non-compliance, and such orders will only be set aside where default was not wilful.
  • Costs follow the event; where a suit is struck out for non-compliance with court directions, the defendant is entitled to costs.

Court orders

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  1. 1.The plaintiff's notice of motion dated 23/10/2024 is hereby dismissed.
  2. 2.The second defendant shall have the costs of the suit and the notices of motion, both dated 23/10/2024.

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 25(c), 48, 51(1)
  • Civil Procedure ActSections 1, 1A, 1B, 3, 3A, 27
  • Civil Procedure RulesOrder 11 Rules 3(1), 3(5)(b); Order 12 Rule 7; Order 51 Rules 1 & 4

Cases cited (5)

  • Kenya Tea Development Agency Management Services Limited & another v AIG Kenya Insurance Company Limited
    [2022] KEHC 662 (KLR)
  • Omar Sharrif t/a Kemco Auto V Freight Forwarders Limited & Another
    [2008] KECA 62 (KLR)
  • Hytec vs. Coventry City Council
    (1997) I WLR 1666
  • Caribbean General Insurance Ltd. vs. Frizzel Insurance Brokers Ltd.
    [1994] 2 Lloyod's Rep. 32 CA
  • Eastern Radio Service vs. Tiny Tots
    (1967) EALR 392
Jurisdiction invoked
Articles 25(c), 48 & 51(1) of the Constitution; Sections 1, 1A, 3, 3A & 63(e) of the Civil Procedure Act; Order 51 Rules 1 & 4 of the Civil Procedure Rules

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, "Serem v Erdemann Property Limited & another (Environment and Land Case Civil Suit 191 of 2018) [2025] KEELC 8473 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8473/eng@2025-12-02

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