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ELCDismissedNot stated in the ruling (petition dated 30 March 2022)

Mutengu & 2 others (Suing in their Capacity as the Chairperson, Secretary, Treasurer and on Behalf of of 650 Members of Sabati Self Help Group) v Numerical Machining Complex Limited & 3 others (Environment and Land Petition E008 of 2022) [2026] KEELC 2131 (KLR)

Environment and Land Court of Kenya
21 April 2026
1,918 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Machakos Environment and Land Court refused to strike out a 2022 land rights petition, finding the delay excusable because settlement talks and the respondent's own failures explained it.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Machakos (A. Y. Koross, J) determined a notice of motion dated 28 April 2025 by which the 1st respondent, under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and provisions of the Civil Procedure Rules, sought to strike out a petition dated 30 March 2022 - in which the petitioners alleged violation of their property rights over land registration no. 11895/20 and had obtained a status quo order preventing eviction - for want of prosecution. The 1st respondent (through George Makaketo's affidavits) contended the petitioners had not appeared or appointed new advocates since their erstwhile firm, Fred K. Musyimi & Associates, was discharged in 2022, delaying the matter and prejudicing the use of the property for government projects. The petitioners (through Onesmus Nzomo Mutengu) claimed ignorance of the cease-acting application, ongoing settlement negotiations, and diligence in finally checking the court file. The court framed one issue: whether the petition was suitable for striking out for want of prosecution. Applying Article 159(2)(b), the Mutunga Rules, and Ivita v Kyumbu and Argan Wekesa Okumu, the court held the return of service disproved the petitioners' non-service claim, but found the delay otherwise excusable: settlement correspondence went unanswered by the 1st respondent, and the 1st respondent itself failed to serve personal mention notices as directed on 13 June 2024. The threshold for striking out was not met. The motion was dismissed with costs in the cause and a mention set for pre-trial directions.

Questions the Court framed

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

  1. 1.Whether the 1st respondent has demonstrated that the petition was suitable for dismissal/striking out for want of prosecution

Key legal issues

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01

Whether the petition should be struck out for want of prosecution

Holding

No - the threshold for striking out was not met

Reasoning

The court applied the Ivita v Kyumbu principles: the delay must be demonstrated, be excessive and inexcusable, and cause prejudice. Here, the petitioners were served with the 2022 cease-acting application (per the return of service sworn by Kyalo Makau) but their delay thereafter was partly excusable - they pursued settlement correspondence which the 1st respondent ignored, and the 1st respondent itself failed to serve the petitioners personally as directed by the court on 13 June 2024. The petitioners' late diligence in checking the file in September 2025 was accepted, and no sufficient prejudice outweighing a trial on the merits was shown.

p. 4
02

Whether the petitioners were served with the application to cease acting dated 8 September 2022

Holding

Yes - their assertion of non-service was unfounded

Reasoning

A return of service sworn by Kyalo Makau on 19 September 2022 detailed service of the chairman at 10:30 am on 9 September 2022 in the presence of the secretary. The petitioners neither contested the details nor sought to cross-examine the process server, and they failed to appear on 25 October 2022 when the application was listed for hearing. Non-service of that application therefore could not explain the delay.

p. 4

Legal principles established

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  • A party who initiates a dispute must take all necessary steps to ensure it is heard and concluded without unnecessary delay
  • The discretion to dismiss a suit for want of prosecution must be exercised judicially considering whether the delay is excessive and inexcusable and whether the applicant suffers prejudice

Court orders

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  1. 1.The notice of motion dated 28 April 2025 seeking to strike out the petition for want of prosecution is dismissed
  2. 2.Costs of the application in the cause
  3. 3.A mention date to be set for purposes of pre-trial directions

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 159(2)(b) of the Constitution; Rules 3(6) and 8 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules); Sections 1A, 1B, 3 and 3A of the Civil Procedure Act

Relief refused

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Striking out of the entire petition dated 30 March 2022 for want of prosecution

The threshold for striking out or dismissal of the petition was not met; delay was excusable and no sufficient prejudice demonstrated

p. 4

Costs

Costs in the cause

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.

In the upshot, the notice of motion dated 28 April 2025 is dismissed, with costs in the cause. A mention date shall be set for purposes of pre-trial directions. It is so ordered.
p. 4Disposition - application to strike out dismissed
the rationale for the dismissal of suits is grounded in the necessity for expedition in the resolution of disputes, a principle which has been elevated to a constitutional mandate under Article 159(2)(b) of the Constitution, which stipulates that justice shall not be delayed
p. 2Constitutional basis for want of prosecution jurisdiction
the court should consider whether delay in prosecuting a petition has actually been demonstrated; the duration of the delay; and whether the delay was excessive and inexcusable
p. 3Guiding principles for dismissal for want of prosecution
There is no demonstration showing that the current motion was served upon the petitioners to warrant the perusal of the court file other than diligence, albeit late
p. 4Acceptance of petitioners' late diligence
As for grounds of attempts at negotiation, there is correspondence demonstrating that the petitioners pursued settlement discussions; however, the 1st respondent and other government entities were unresponsive. The reasons posited are excusable.
p. 4Delay found excusable

Issues in the judgment

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minor

Submissions for the petitioners dated 19 January 2025 predate the application (28 April 2025) they respond to - probable typographical error for 2026

minor

The court refers to Rule 3(8) of the Mutunga Rules but quotes a passage headed simply 'Rule 8'; it also states guidance 'may be derived from Rules 3(6) and 3(8)' yet the quoted inherent-power provision is Rule 8

minor

The court directs petitioners to 'grapple with' its decision in Numerical Machining Complex but does not state the outcome of that comparison before finding the threshold unmet

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, "Mutengu & 2 others (Suing in their Capacity as the Chairperson, Secretary, Treasurer and on Behalf of of 650 Members of Sabati Self Help Group) v Numerical Machining Complex Limited & 3 others (Environment and Land Petition E008 of 2022) [2026] KEELC 2131 (KLR)", Case Analysis (2026). Not stated in the ruling (petition dated 30 March 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2131/eng@2026-04-21

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