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ELCDismissedNotice of Motion dated 13/05/2025 (ELC Suit, Siaya) arising from MCELC/21/2019 and Appeal No. ELCLA/025/2025

Dancan & 11 others v Amoth & 3 others (Environment and Land Case E001 of 2025) [2026] KEELC 1111 (KLR)

Environment and Land Court
26 February 2026
1,490 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Siaya Environment and Land Court refused to halt a land suit over unpaid costs because a prior court order already protecting those costs made the application pointless.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Siaya (A. E. Dena, J) on a Notice of Motion dated 13/05/2025 by the 1st and 3rd Defendants. They sought a stay of the suit pending payment of costs, and striking out of the suit for non-payment of taxed costs of Kshs. 349,235 awarded in the discontinued lower court suit MCELC/21/2019, which was dismissed for want of jurisdiction. The applicants contended that the plaintiffs had obstructed auctioneers, including threatening them with a panga, and being in contempt of the costs order lacked audience before the court. The application was grounded on Sections 1A, 1B, 3A and 6 of the Civil Procedure Act, Orders 25 Rule 4 and 26 Rule 1 of the Civil Procedure Rules, 2010, and Article 159(2)(c) of the Constitution. The 2nd Plaintiff opposed, asserting the taxation was flawed and under appeal, with a ruling due. The court found the prior suit and the present one identical in parties and prayers and that the costs remained unpaid, and was persuaded by the two ELC authorities cited. However, the court noted its own ruling of 18/12/2025 in the related appeal ELCLA/025/2025, which stayed execution and ordered the applicants' costs of Kshs. 349,235 to be deposited in court within 45 days. Those orders secured the taxed costs. Staying the present proceedings for non-payment would contradict that ruling, and the present suit could proceed on the merits as unrelated to execution. The court declined to impute criminality. The application was declared overtaken by events.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the orders sought in the Notice of Motion dated 13/05/2025 (stay of the suit pending payment of taxed costs, and striking out of the suit for non-payment of costs in MCELC/21/2019) should be issued

Key legal issues

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01

Whether the suit should be stayed or struck out for non-payment of taxed costs in the discontinued lower court suit (MCELC/21/2019)

Holding

The application was refused; it is overtaken by events because the court had on 18/12/2025 in ELCLA/025/2025 ordered a stay of execution and a deposit of Kshs. 349,235 into court, which secures the taxed costs

Reasoning

The court accepted that the prior suit was discontinued for want of jurisdiction, that the parties and prayers are the same, and that the taxed costs of Kshs. 349,235 remain unsettled. It was persuaded by the authorities cited under Order 25 Rule 4. However, the earlier ruling of 18/12/2025 in the related appeal already secured the costs by ordering a deposit into court, so the relief sought would contradict the court's own orders. The present suit concerns substantive merits unrelated to execution, and two appeals on the costs remain pending.

p. 4
02

Whether the Plaintiffs are in contempt for failing to pay taxed costs and therefore lack audience

Holding

The court declined to impute criminality; an allegation of criminal conduct should be pursued in the proper forum

Reasoning

The respondents deponed that the taxation was flawed and founded on criminal activity. The court rejected this framing, holding that criminality cannot be imputed on the other party in this manner and that a party who feels strongly about such allegations knows the correct forum to adjudicate them. The court did not find the plaintiffs in contempt or deny them audience, and noted that the decretal sums are the subject of pending appeals.

p. 3

Legal principles established

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  • Where a prior suit was discontinued for want of jurisdiction and a subsequent suit is brought on the same cause of action, the court may stay the subsequent suit until the costs of the discontinued suit are paid (Order 25 Rule 4), but the discretion is exercised on the merits and circumstances of each case
  • Where a court has already made orders securing the taxed costs (deposit into court pending appeal), a fresh application to stay/strike out for non-payment of those costs is overtaken by events and would contradict the earlier orders

Court orders

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  1. 1.The application dated 13/05/2025 is overtaken by events and shall be treated as such in view of the orders issued on 18/12/2025 in ELCLA/025/2025

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
null — first-instance application; related appeals pending before the same court
ELCLA/025/2025 (related, not the subject of this ruling)
Jurisdiction invoked
Sections 1A, 1B, 3A and 6 of the Civil Procedure Act, Cap 21; Order 25 Rule 4 and Order 26 Rule 1 of the Civil Procedure Rules, 2010; Article 159(2)(c) of the Constitution of Kenya, 2010

Relief refused

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Stay of the suit pending payment of costs

The court's earlier orders of 18/12/2025 in ELCLA/025/2025 already secure the taxed costs by way of a court deposit; staying the present proceedings would contradict that ruling

p. 4

Striking out of the suit for non-payment of taxed costs in MCELC/21/2019

The suit can proceed on its merits as it has nothing to do with execution of the decree; the application is overtaken by events

p. 4

Contempt finding and denial of audience against the Plaintiffs

The court declined to impute criminality on the respondents, observing that a party alleging crime knows the correct forum

p. 3

Costs

No costs order made in this ruling; the application was simply declared overtaken by events.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Orders Accordingly
p. 4Disposition — application declared overtaken by events and refused
the application dated 13/05/2025 is overtaken by events and shall be treated as such in view of the orders of the court issued on 18/12/2025 in ELCLA/025/2025 filed in the Environment and Land Court at Siaya
p. 4Final orders of the court
In the meantime, the present suit can proceed on the substantive merits as it has nothing to do with the execution of the decree.
p. 4Suit to proceed to hearing on the merits
If any subsequent suit shall be brought before payment of the costs of a discontinued suit, upon the same, or substantially the same cause of action, the court may order a stay of such subsequent suit until such costs shall have been paid
p. 3Order 25 Rule 4 — stay of subsequent suit until costs paid

Issues in the judgment

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minor

The date of delivery is printed as 26 February 2026, yet the ruling references a ruling 'rendered... on 18/12/2025' — internally consistent, but the stated application disposed by written submissions dated 30/09/2025 and reply dated 7/07/2025 for an application dated 13/05/2025 raises no contradiction; flag only that the judgment is labelled a 'ruling' on a Notice of Motion, not a full judgment

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, "Dancan & 11 others v Amoth & 3 others (Environment and Land Case E001 of 2025) [2026] KEELC 1111 (KLR)", Case Analysis (2026). Notice of Motion dated 13/05/2025 (ELC Suit, Siaya) arising from MCELC/21/2019 and Appeal No. ELCLA/025/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1111/eng@2026-02-26

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