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ELCPartially AllowedMotion dated 9th February 2026 in the pending Petition (not stated on the face of the extract)· [2026] KEELC 2618 (KLR)

Sangahani & 2 others (For and on behalf of Parklands Residents Association) v Nairobi City County Government & 113 others (Environment and Planning Petition E012 of 2025) [2026] KEELC 2618 (KLR)

Environment and Land Court
30 April 2026
4,575 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed cross-examination of key witnesses in a contempt dispute but refused to summon the lawyer involved.

What this practically means

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Executive summary

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This interlocutory ruling by the Environment and Land Court at Nairobi (Angote PJ, Omollo J and Mbogo J) determines a Notice of Motion dated 9th February 2026 by the Petitioners/Applicants in pending contempt proceedings arising from disobedience of orders made on 5th March 2025. On 14th October 2025 the court found the 4th Contemnor, Geofirey Mosiria, in contempt; he then moved to review and set aside that finding, disputing the service of the contempt application, the authority of Patrick Analo Akivaga to swear an affidavit on his behalf, and whether the firm of Jamal Bake & Associates was instructed to act for him. The Applicants sought suspension of directions to file submissions and witness summonses against Akivaga, Mosiria, advocate Bake Hassan Jamala and process server Collins Githuku. The Respondents contended the motion was incompetent, wrongly founded on Order 16 Rule 1 rather than Order 19 Rule 2, an abuse of process amounting to a fishing expedition, and an attempt to compel an advocate to breach privilege under Section 134 of the Evidence Act. The court held that citation of the wrong provision was not fatal, applying Steyn v Gnecchi-Ruscone and Article 159(2)(d). On the merits, it found cross-examination of Akivaga, Mosiria and Githuku necessary to resolve the authority, instruction and service issues raised in the review motion, but declined to summon Bake Hassan Jamala, who swore no affidavit, while holding that the retainer question is not protected by privilege. The motion partly succeeded; witness summons were ordered against the three deponents and each party was to bear its own costs.

Key legal issues

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01

Competence of the motion for invoking Order 16 Rule 1 instead of Order 19 Rule 2

Holding

The motion was not incompetent; the wrong provision cited was not fatal given the court's jurisdiction and the constitutional command against procedural technicalities

Reasoning

The court accepted that Order 16 Rule 1 governs summoning witnesses for trial and that the proper framework for cross-examining deponents is Order 19 Rule 2. However, citing the Supreme Court in Steyn v Gnecchi-Ruscone and Article 159(2)(d) of the Constitution, it held that mis-citation of a provision is not fatal where jurisdiction exists and the substance is clear. The residual invokees (Sections 1A, 1B, 3A CPA and Rule 3 Mutunga Rules) also confer broad procedural authority.

p. 8
02

Whether cross-examination of the deponents on the review motion should be ordered

Holding

Yes, as to Akivaga, Mosiria and Githuku; the denial of authority, instructions and service go to the core of the review motion and their evidence would assist a fair determination without reopening the contempt finding

Reasoning

The court found the application was confined to issues arising from the 4th Contemnor's review motion, not an attempt to reopen the contempt finding. The 4th Contemnor's denials of authorisation of the affidavit, of instructions to the advocate, and of service bear directly on representation, participation and service. The implicated persons are best placed to clarify these matters, so cross-examination was ordered.

p. 9
03

Whether Bake Hassan Jamala could be summoned notwithstanding privilege and Rule 8 of the Advocates (Practice) Rules

Holding

Privilege and Rule 8 would not bar attendance on the retainer question, but his summons was nonetheless refused because he swore no affidavit and the issues could be determined from the deponents

Reasoning

The court held Section 134 of the Evidence Act is not an absolute bar since the inquiry concerned whether instructions existed at all, not privileged communications. Rule 8 likewise does not immunise an advocate from attendance on the retainer issue. Nevertheless, as he placed no evidence before the court, the issues could be adequately determined from the pleadings and the evidence of the actual deponents, so his summons was declined.

p. 10

Legal principles established

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  • Failure to cite the correct provision of law is not fatal where the court is seized of jurisdiction and the substance of the application is clear
  • The power under Order 19 Rule 2 to order cross-examination of a deponent is discretionary and must be exercised judiciously, on special circumstances such as allegations of fraud, mala fides or conflicting affidavits
  • Advocate-client privilege under Section 134 of the Evidence Act does not bar an advocate's attendance to answer the anterior question of whether a retainer existed at all

Court orders

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  1. 1.Witness summons to issue compelling the attendance of Patrick Analo Akivaga (6th Respondent/3rd Contemnor), Geofirey Mosiria (4th Contemnor) and Collins Githuku (Advocate of the High Court of Kenya) to attend court for cross-examination on matters arising from the motion dated 29th October 2025
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 16 Rule 1
  • Civil Procedure RulesOrder 19 Rule 2
  • Civil Procedure RulesOrder 51 Rule 1
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms (Practice and Procedure Rules) 2013Rule 3
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 259
  • Evidence Act, Cap 80Section 134(1)(a) and (b)
  • Evidence ActSection 106
  • Advocates (Practice) RulesRule 8

Cases cited (5)

  • Murgor & Murgor Advocates vs Kenya Airports Authority
    [2022] eKLR
  • MHM vs KNM
    Civil Case 23A/2018 (HC)
  • Central Bank of Kenya vs Attorney General
    Appeal No 3 of 2020-EACJ
  • Hermanus Phillipus Steyn vs Giovanni Gnecchi-Ruscone
    [2013] eKLR
  • G G R vs H-P S
    [2012] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 16 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010/2020; Rule 3 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga 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, "Sangahani & 2 others (For and on behalf of Parklands Residents Association) v Nairobi City County Government & 113 others (Environment and Planning Petition E012 of 2025) [2026] KEELC 2618 (KLR)", Case Analysis (2026). Motion dated 9th February 2026 in the pending Petition (not stated on the face of the extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2618/eng@2026-04-30

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