County Government of Kwale v Pasini Investment Limited & another (Miscellaneous Application E018 of 2025) [2026] KEELC 2985 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Kwale MCELC No. 1 of 2022 is a subsisting suit capable of transfer under the provision of Section 18 of the Civil Procedure Act, Cap. 21
- 2.Whether the Applicant has demonstrated exceptional circumstances warranting transfer and consolidation of the suit with Kwale ELCC No. 140 of 2021 (Test Suit)
- 3.Whether the Applicant is entitled to leave to amend pleadings and issue Pre-Trial directions in Land Case No. 1 of 2022
- 4.What orders should issue as to costs
Key legal issues
#Whether a suit dismissed for want of prosecution is capable of transfer under Section 18 of the Civil Procedure Act
It is not. The dismissal of 11th June 2025 extinguished the suit; the later appellate judgment of 23rd June 2025 affirming the earlier reinstatement did not expressly revive or set aside the second dismissal, and no fresh reinstatement application was filed.
The court traced the chronology: the suit was reinstated on 15th May 2024, dismissed for want of prosecution on 11th June 2025, and the appellate judgment affirming reinstatement was delivered on 23rd June 2025. Since the appellate judgment post-dated the dismissal and did not specifically set it aside, it could not revive an extinguished suit. The power to transfer under Section 18 is discretionary and limited to pending suits.
Whether exceptional circumstances justified transfer and consolidation with the Test Suit
No. Although the subject matter overlapped with the consolidated suits and consolidation would promote efficiency, consolidation presupposes a valid pending suit, and the efficiency arguments could not override that statutory requirement.
Relying on Jan Bolden Nielsen and Nyati Security Guards, the court accepted that consolidation serves the overriding objective by saving costs, time and avoiding conflicting decisions, but held that such orders can only be made within known legal parameters, including the existence of pending suits. Since Kwale MCELC No. 1 of 2022 was dead, the absence of a subsisting suit was fatal to the application.
Whether leave to amend pleadings and issue pre-trial directions could be granted in the dismissed suit
No. Orders 8 and 11 of the Civil Procedure Rules presuppose a pending suit; amendments cannot be granted in a non-existent suit.
The court reviewed the well-settled principles on amendment of pleadings from Central Kenya Ltd, Eastern Bakery, Bullen and Leake and Halsbury's, all of which allow amendments to determine the real question in controversy provided there is no injustice. However, those principles apply to live proceedings; a dismissed suit offers no platform upon which amendments or pre-trial directions can issue, and granting them would amount to reviving litigation through the back door.
Costs
The Respondent was the successful party; costs of the application were awarded to it against the Applicant under Section 27 of the Civil Procedure Act.
Applying the principle that costs follow the event and citing Harun Mutwiri, KUCFAW v Bidco and Hussein Muhumed Sirat, the court found no exceptional circumstances to depart from the general rule since the Applicant had filed an incompetent application and failed to prosecute its suit diligently.
Legal principles established
#- A suit dismissed for want of prosecution ceases to exist unless revived through a formal application and court order; a suit cannot be transferred under Section 18 of the Civil Procedure Act unless it is pending
- Consolidation presupposes the subsistence of the suits to be consolidated
- The burden lies on the applicant for transfer to make out a strong case for the transfer
- Costs follow the event and the successful party is entitled to costs absent compelling reasons
Court orders
#- 1.The Notice of Motion application dated 23rd October 2025 be and is hereby found to be unmeritorious & incompetent thus dismissed accordingly
- 2.There shall be no transfer or consolidation of Kwale MCELC No. 1 of 2022 with Kwale ELCC No. 140 of 2021 (Test Suit), as the former is not subsisting
- 3.The Applicant is not entitled to leave to amend pleadings or issue pre-trial directions in Kwale MCELC No. 1 of 2022
- 4.Costs of the application dated 23rd October 2025 shall be borne by the Applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 18 of the Civil Procedure Act, Cap. 21; Articles 162(2)(b) and 165(6) of the Constitution of Kenya, 2010
Relief refused
#Transfer of Kwale MCELC No. 1 of 2022 to the Environment and Land Court at Kwale for consolidation with the Test Suit
The suit had been dismissed for want of prosecution on 11th June 2025 and was never reinstated, so no subsisting suit existed capable of transfer under Section 18 of the Civil Procedure Act
Interim stay of proceedings in Kwale MCELC No. 1 of 2022
No live suit existed to be stayed
Leave to amend pleadings and issue pre-trial directions
Amendment and pre-trial directions presuppose a pending suit; granting them in a dismissed suit would revive litigation through the back door
Costs
Costs of the application dated 23rd October 2025 shall be borne by the Applicant, County Government of Kwale, in line with Section 27 of the Civil Procedure Act and the principle that costs follow the event.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
a) THAT the Notice of Motion application dated 23 rd October 2025 be and is hereby found to be unmeritorious & incompetent thus dismissed accordingly.
b) THAT there shall be no transfer or consolidation of Kwale MCELC No. 1 of 2022 with Kwale ELCC No. 140 of 2021 (Test Suit), as the former is not subsisting.
d) THAT costs of the application dated 23rd October 2025 shall be borne by the Applicant, in line with Section 27 of the Civil Procedure Act and the principle that costs follow the event.
the Civil case of “Kwale MCELC No. 1 of 2022” was dismissed for want of prosecution on 11th June 2025 and has not been reinstated thereafter. Consequently, there is no subsisting suit capable of transfer
The burden lies on the Applicant to make out a strong case for the transfer.
Allowing amendment in a dismissed matter would amount to reviving litigation through the back door
Issues in the judgment
#Submissions could not be accessed on the CTS portal or registry, yet the court notes the parties were directed to file them and 'all the parties complied'
The Respondent's replying affidavit is said to have been filed on 10th March 2026, while parties' submissions were directed on 12th March 2025, an apparently inconsistent chronology
The presiding judge's surname appears as 'NAIKUINI' in the running header but 'NAIKUNI' in the signature block
The appellate matter is referred to variously as Kwale ELCCA E007 of 2024 and Kwale ELCCA No. 007 of 2025
Section 27(1) of the Civil Procedure Act is misdescribed in one passage as a provision of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government of Kwale v Pasini Investment Limited & another (Miscellaneous Application E018 of 2025) [2026] KEELC 2985 (KLR)", Case Analysis (2026). Misc. Appl. No. E018 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2985/eng@2026-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.