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ELCDismissedNot stated in judgment (ELC suit first filed 7th March, 2023)· [2026] KEELC 3594 (KLR)

Khan & another v Mwatарна & 6 others (Civil Case E015 of 2023) [2026] KEELC 3594 (KLR)

Environment and Land Court of Kenya
30 April 2026
5,225 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court at Kwale dismissed the defendants' bid to pause proceedings and file a fresh defence, ruling that courts will not reward parties who miss hearings and delay justice.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kwale (L.L Naikuni, J) determined a Notice of Motion dated 23rd July, 2025 by the 1st and 2nd Defendants/Applicants, filed after the court's ruling of the same date. The Applicants, through Messrs. Lilan Koech & Co Advocates, sought a stay of proceedings and arrest of the pending judgment, plus leave to file a Defence out of time, relying on sections 1A, 1B and 3A of the Civil Procedure Act and Article 50(1) of the Constitution. They attributed their absence from the hearing of 20th June, 2025 to financial hardship and asserted a defence raising triable issues. The Plaintiffs/Respondents opposed, showing that a defence and counter-claim were already on record, that the Applicants' advocates had ceased acting on 24th March, 2025 and the Applicants were given time to find new counsel, and that the Applicants knowingly failed to attend the hearing despite service. Framing three issues - merit, entitlement to relief, and costs - the court reviewed the stringent threshold for staying proceedings and the inherent jurisdiction to arrest a reserved judgment. It held that a defence already existed, no purpose for the stay was demonstrated, and the overriding objective does not excuse dilatory tactics or abuse of process. The court found the Applicants indolent and dismissed the application entirely, fixed judgment for 1st July, 2026, and awarded costs of the application to the Plaintiffs/Respondents, to be borne by the Defendants jointly and severally.

Key legal issues

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01

Whether the Applicants made a case for stay of proceedings and arrest of judgment

Holding

The application lacked merit. The Applicants had a defence on record, were aware of hearing dates, and failed to attend the hearing after their advocates ceased acting; no purpose for staying proceedings was demonstrated.

Reasoning

The court traced the suit's history: the Defendants filed a joint defence on 7th March 2024, their advocates ceased acting on 24th March 2025, and they were given time to procure new representation but failed to attend the hearing on 20th June 2025 despite service. The court held that stay of proceedings is not granted lightly, citing the stringent threshold, and found the application superfluous since both cases were closed and a defence with counter-claim was already on record.

p. 7
02

Whether leave should be granted to file a defence out of time

Holding

Leave was refused because a defence including a counter-claim was already on record, rendering the relief pointless.

Reasoning

The court noted the existing defence filed under Order 7 of the Civil Procedure Rules, 2010, including a counter-claim, and found no logic in seeking to file a further defence out of time. The delay was attributed to the Applicants' own conduct, being indolence after having been afforded opportunity to participate.

p. 7
03

Whether the Applicants' invocation of fair hearing rights and the overriding objective justified the orders

Holding

It did not; the overriding objective does not excuse dilatory tactics or abuse of process.

Reasoning

Relying on Salat v IEBC and KCB v KPCU, the court held that the overriding objective principle does not cover abuse of court process or dilatory tactics. The Applicants had been given the opportunity to ventilate their case, including time to procure new counsel under Article 50(2)(g) & (h) and Order 9 Rule 8, but failed to use it.

p. 9
04

Costs of the application

Holding

Costs follow the event; the successful Plaintiffs/Respondents were awarded costs.

Reasoning

Under section 27 of the Civil Procedure Act, costs are discretionary and follow the event unless the court orders otherwise for good reason. Citing Impressa Fortunato Federice v Nabwire and Orix Oil (Kenya) Limited v Paul Kabeu, the court found no deviant factors and awarded costs to the Plaintiffs/Respondents.

Legal principles established

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  • Stay of proceedings is a grave judicial action that interferes with a litigant's right to conduct litigation and the test for it is high and stringent
  • The court's discretionary power to stay proceedings or arrest judgment must be exercised sparingly and is not designed to assist a party who deliberately obstructs or delays the course of justice
  • The overriding objective principle does not shield dilatory tactics or abuse of court process

Court orders

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  1. 1.The Notice of Motion application dated 23rd July, 2025 by the Defendant/Applicant be and is hereby found to lack merit and hence is disallowed entirely
  2. 2.Judgement of this matter is set for delivery on 1st July, 2026
  3. 3.Costs of this application awarded to the Plaintiffs/Respondents, to be borne by the 1st & 2nd Defendants/Applicants jointly and severally
Jurisdiction invoked
Inherent powers under sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 and Article 50(1) of the Constitution of Kenya, 2010

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, "Khan & another v Mwatарна & 6 others (Civil Case E015 of 2023) [2026] KEELC 3594 (KLR)", Case Analysis (2026). Not stated in judgment (ELC suit first filed 7th March, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3594/eng@2026-04-30

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