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ELCPartially AllowedNot stated in the judgment· [2026] KEELC 314 (KLR)

Makau t/a Great Grace Agencies v Hinga (Environment and Land Case E271 of 2018) [2026] KEELC 314 (KLR)

Environment and Land Court of Kenya
22 January 2026
2,621 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Defendant/Applicant moved the court by an application dated 26th September 2025 seeking, among other things, that Jane Mwikali Makau be committed to civil jail for contempt of orders of 30th and 31st July 2018 requiring maintenance of status quo over LR No. 37/167, leave to amend her defence and file a counterclaim, that the original title be deposited in court for safe custody, and that the proceedings of 17th February 2025 be struck out with the Plaintiff recalled for cross-examination by her new advocate. The Plaintiff opposed the application as an omnibus one, filed after unexplained delay, and maintained she was in possession lawfully under clause 8 of the sale agreement and a consent order of 6th November 2018. The court framed four issues: whether the application was omnibus, whether it was guilty of delay, whether the orders sought were merited, and costs. It held the application was indeed omnibus, each prayer being governed by different principles, but declined to strike it out as the Respondent had an opportunity to respond. The contempt claim failed: the status quo order was ambiguous, the standard of proof is beyond a balance of probabilities, and the applicant impermissibly relied on new evidence; the delay of several years was unexplained. Leave to amend the defence and counterclaim was nevertheless granted, the suit not having concluded, with 15 days to effect the amendment and 21 days for the Plaintiff to reply. The recall prayer was dismissed as an abuse of process, and the deposit of the title was refused. Dismissed prayers were awarded costs to the Plaintiff/Respondent.

Key legal issues

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01

Omnibus applications

Holding

The application combined three distinct and independent prayers, making adjudication difficult, but it was not struck out because the Respondent had the opportunity to respond

Reasoning

The court found that the application sought three distinct orders - a contempt declaration, leave to amend and counterclaim, and recall of the plaintiff - each governed by different rules and principles. Following Rajput, omnibus applications are problematic, but the court declined to strike out the application solely on that ground since the plaintiff had filed a comprehensive replying affidavit and was not prejudiced.

p. 4
02

Inordinate and unexplained delay

Holding

The delay in bringing both the contempt application and the amendment application was unexplained, causing the contempt claim to fail

Reasoning

The consent order said to be breached was recorded on 6th November 2018, yet the contempt application was brought only in September 2025, long after the applicant had sought and obtained leave to amend her defence in 2024 through CK Advocates. The applicant failed to produce evidence of payment to the purported 'advocate' Simon Wangombe. Absent an explanation for the delay, the contempt limb of the application failed.

p. 4
03

Proof of contempt and ambiguity of court orders

Holding

Contempt was not proved to the required standard because the status quo order was ambiguous and the applicant sought to rely on new evidence

Reasoning

The impugned order merely directed that status quo relating to title, use and possession be maintained, without defining what the status quo was or whether 'use' included development. The applicant also sought to rely on a photograph that was not part of the evidence in the application that generated the order. A court cannot convict for contempt on an ambiguous order supported by new evidence; the standard of proof is beyond a balance of probabilities.

p. 5
04

Leave to amend pleadings and counterclaim

Holding

Leave to amend the defence and introduce a counterclaim was granted despite delay, since the suit had not concluded and prejudice could be compensated

Reasoning

Under Order 8 rule 3 of the Civil Procedure Rules the court may at any stage allow amendment. Although brought after undue delay, the matter was not concluded; the plaintiff had closed her case, but the interests of justice favoured permitting amendment before judgment. Prejudice could be remedied by allowing the plaintiff to file a defence to the counterclaim and by awarding costs. Compliance was fixed at 15 days, failing which the leave lapses.

p. 5
05

Recall of the Plaintiff for cross-examination and safe custody of the title

Holding

Both prayers were refused - recall as an abuse of process, and deposit of the title for want of demonstrated grounds

Reasoning

The recall prayer was an abuse of process because a similar prayer had already been granted and the applicant must bear the consequences of her advocate's performance. The deposit of the title was refused because an order was already registered on the title, the advocate-client complaint could not be determined interlocutorily, and no interference with the title was demonstrated.

p. 5

Legal principles established

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  • An omnibus application is difficult to adjudicate because each relief sought is governed by different rules and judicial principles, but an omnibus application will not necessarily be struck out where the respondent had an opportunity to respond
  • Contempt must be proved to a standard beyond the balance of probabilities, and an ambiguous order cannot sustain a conviction for contempt
  • An amendment to pleadings may be allowed before judgment notwithstanding delay, where prejudice can be remedied by costs and leave to reply

Court orders

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  1. 1.Prayers 2-7 and 9-10 of the application dated 26th September 2025 are dismissed
  2. 2.Leave to amend the defence and raise a counterclaim is granted (prayer 8), with compliance set for a limited time of 15 days for effecting the amendment; in default the leave granted expires automatically
  3. 3.Upon service of the amended defence and counterclaim, the Plaintiff to reply within 21 days of such service
  4. 4.Costs of the dismissed prayers to the Plaintiff/Respondent

Authorities

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Legislation

  • Judicature ActSection 5
  • Civil Procedure ActSections 1A, 3A and 63
  • Civil Procedure RulesOrder 51 rule 1; Order 1; Order 8 rule 3 (subrules 1 and 5)

Cases cited (1)

  • Rajput vs. Barclays Bank of Kenya & Others
Jurisdiction invoked
Order 51(1), Order 1 and Order 8 Rule 3(3) of the Civil Procedure Rules; Sections 1A, 3A and 63 of the Civil Procedure Act (Cap 21); Section 5 of the Judicature Act (Cap 8)

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, "Makau t/a Great Grace Agencies v Hinga (Environment and Land Case E271 of 2018) [2026] KEELC 314 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/314/eng@2026-01-22

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