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ELCDismissedELC E050 of 2025· [2026] KEELC 4756 (KLR)

Asila v SO Owino & Associates Advocates (Land Originating Summons E050 of 2025) [2026] KEELC 4756 (KLR)

Environment and Land Court
24 July 2026
CMC.G. Mbogo
2,206 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to convert an originating summons into a plaint because the fee dispute was commercial, not land-related.

What this practically means

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Executive summary

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By a notice of motion dated 4th May 2026, the respondent (an advocate, Stephen Omondi Owino) sought conversion of the applicant's originating summons into a plaint so he could file a defence and counterclaim, plus a stay of the summons, invoking Order 37 Rule 19 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The applicant, Dr. Said Chitembwe, had sued by originating summons dated 19th August 2025 seeking orders compelling the respondent to file bills of costs in four matters, contesting the utilisation of Kshs.50,000,000/- paid by Nairobi City County, of which he says he received only Kshs.6,000,000/-. The respondent relied on a discharge and release dated 25th November 2024 allegedly settling all fees, which the applicant denied signing, alleging fraud. Citing Kenya Hotels Ltd v Oriental Commercial Bank Ltd, the court acknowledged that Order 37 Rule 19 permits conversion and that a counterclaim ordinarily requires it, and that disputed facts can be handled by viva voce evidence without conversion. However, it held that the dispute over the discharge and release and settlement is commercial in nature, with no nexus to land, so granting conversion would alter and oust the court's jurisdiction under Section 13 of the Environment and Land Court Act. The application was dismissed with costs to the applicant, with leave for the respondent to respond to the originating summons.

Key legal issues

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01

Whether the originating summons should be converted to a plaint to allow a counterclaim

Holding

Application dismissed; conversion declined because the dispute is commercial and outside the ELC's jurisdiction

Reasoning

The court accepted that Order 37 Rule 19 permits conversion and that a counterclaim would require conversion. However, it held that the dispute over the discharge and release, the settlement and utilisation of Kshs.50,000,000/- is commercial in nature with no nexus to land, so ordering conversion would confer on the ELC jurisdiction it does not have under Section 13 of the ELC Act.

p. 8

Legal principles established

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  • Order 37 Rule 19 empowers the court to order that originating summons proceedings continue as if begun by plaint at any stage
  • An originating summons cannot be defeated merely because a dispute is contentious or complex; the court may order viva voce evidence without converting the pleadings
  • Conversion of originating summons into a plaint cannot be used where the underlying dispute falls outside the court's statutory jurisdiction

Court orders

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  1. 1.The notice of motion dated 4th May, 2026 is dismissed
  2. 2.Costs of the application awarded to the applicant
Jurisdiction invoked
Section 13 of the Environment and Land Court Act

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, "Asila v SO Owino & Associates Advocates (Land Originating Summons E050 of 2025) [2026] KEELC 4756 (KLR)", Case Analysis (2026). ELC E050 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4756/eng@2026-07-24

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