Baya v Dhuri & 20 others (Sued as Adminiostrators of the Esrtare of Karisa Dhuri Kombe alias Charo Dhuri Kombe) (Environment and Land Case E017 of 2024) [2026] KEELC 75 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out late-filed defences but refused jail for contempt due to insufficient evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the defences dated 30th August 2024 were filed late and without leave
The defences were filed out of time, after interlocutory judgment and certification for formal proof, and without any leave of court; they were therefore incompetent.
The record showed substituted service effected on 19/3/2024 with 21 days to file appearance and defence, which expired without any appearance or defence. Interlocutory judgment was entered on 28th May 2024 and the matter set down for formal proof. The court found no leave was obtained for the late defences, and that after the Deputy Registrar's order the automatic right to file a defence expired.
Whether the defences should be struck out and expunged
The defences were struck out for being filed out of time and without leave, in breach of Order 7 Rule 5 CPR (no accompanying documents), and without setting aside the interlocutory judgment.
The court rejected the defendants' argument that interlocutory judgment is unavailable in land matters, noting the amended plaint includes a claim for general damages. It held the Deputy Registrar's order for formal proof was potent and had to be set aside before any defence could be filed; the defaulting defendants ought to have copied the 5th and 10th defendants who applied to set aside the judgment.
Whether the 14th defendant was in contempt of the order of 30th May 2024
The contempt allegation was not proved; the committal prayer was dismissed for insufficiency of evidence, though the court noted that did not mean no violation occurred.
The annexture JKK5 did not specifically point at the 14th defendant, and there was no evidence of disposition to third parties attributable to him. Relying on Gatharia K. Mutitika v Baharini Farm Ltd, contempt is quasi-criminal and must be proved with strictness consistent with the gravity of the charge, higher than the balance of probabilities.
Legal principles established
#- Where time for doing an act is prescribed by law, extension of that time must be sought before proceeding to do the act
- In a land matter, a grant of leave to set down the matter for formal proof bars the defendant from filing a defence without first setting aside the interlocutory order; a defence filed without such leave is incompetent
- Article 159(2)(d) of the Constitution cannot be invoked by an indolent party to validate non-compliance with the law
- Contempt is quasi-criminal and must be proved to a standard higher than a balance of probabilities but not beyond reasonable doubt
Court orders
#- 1.The application dated 17th September 2024 is granted in terms of Prayer no 1 (striking out/expunging the defences dated 30th August 2024 of the 2nd, 3rd, 4th, 6th, 9th, 14th and 15th defendants)
- 2.Prayers nos 2 and 3 (committal of the 14th defendant to civil jail for contempt) are declined
- 3.The plaintiff shall have the costs of the application as against the defendants named in the application
- 4.The suit shall be mentioned on 26th February 2026 for issuance of a hearing date
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Civil Procedure Rules (Order 2 Rule 15 and Order 7 CPR) and Article 159(2)(d) of the Constitution discussed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Baya v Dhuri & 20 others (Sued as Adminiostrators of the Esrtare of Karisa Dhuri Kombe alias Charo Dhuri Kombe) (Environment and Land Case E017 of 2024) [2026] KEELC 75 (KLR)", Case Analysis (2026). Not stated in the judgment (Malindi ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/75/eng@2026-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.