County Government of Siaya v Olendo Orare & Samba Advocates (Environment and Land Miscellaneous Case E020 of 2026) [2026] KEELC 4826 (KLR)
The bottom line
#The Environment and Land Court in Siaya allowed a county government to revive a stalled legal challenge over a Kshs 198 million fee bill, freezing collection meanwhile.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the preliminary objection grounded on res judicata and functus officio is merited
- 2.Whether the applicant should be granted leave to file and serve a reference against the taxation ruling out of time
- 3.Whether an order of stay of execution of the Certificate of Taxation/decree should issue pending the hearing and determination of the intended reference
Key legal issues
#Res judicata and functus officio
The preliminary objection fails because the earlier application in Misc. E030 of 2025 was struck out for want of leave, not decided on its merits, so res judicata does not apply.
Applying section 7 of the Civil Procedure Act and the conjunctive elements in IEBC v Maina Kiai, the court held that res judicata requires a final determination on the merits. The prior ruling dismissed the reference application solely because leave to file out of time had not been obtained; that is a procedural technicality, not a merits adjudication, so a fresh leave application is not barred and the court is not functus officio.
Extension of time to file a reference
Leave to file the reference out of time was granted on grounds of substantive justice despite doubts about the applicant's explanation for delay.
The court accepted that mistakes of counsel should not be visited on the County Government, invoking Lucy Bosire and Belinda Murai. Though the explanation involving counsel Rowena Ndeda was impugned and the court found prima facie untruthfulness by Mr. Were, it held that the delay was not inordinate and that the ends of justice are better served by hearing the reference on its merits.
Stay of execution pending reference
Stay of execution of the decree adopting the certificate of taxation was granted, the reference being equated to an appeal under Order 42 Rule 6.
Having deemed the reference synonymous with an appeal, the court applied Order 42 rule 6(2): substantial loss was shown since execution would render the reference nugatory, and the delay was not unreasonable. On security, the court reasoned that counties are going concerns that will always exist, so no security was required.
Legal principles established
#- A dismissal for want of leave is a dismissal on a procedural technicality, not an adjudication on the merits, and does not bar a fresh application as res judicata.
- Adoption of a certificate of taxation as judgment is an administrative step; the certificate can still be challenged through a reference or review.
- Substantive justice under Article 159(2)(d) permits overlooking procedural technicalities such as the wrong form of application.
Court orders
#- 1.The Respondent's Preliminary Objection dated 17th June 2026 is dismissed with no orders as to costs
- 2.The Application dated 14th May, 2026 is allowed
- 3.The Applicant is granted leave to file and serve its Reference against the taxation ruling of the Taxing Master delivered on 8th August, 2025 out of time
- 4.The annexed Reference be deemed as duly filed and upon payment of the requisite fees
- 5.An order of stay of execution of the decree as adopted pursuant to the Certificate of Taxation and/or any consequential orders pending the hearing and determination of the Reference
- 6.The reference to be heard on priority basis
- 7.The costs of the application are awarded to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Paragraph 11(4) of the Advocates Remuneration Order; Sections 1A, 1B & 3A of the Civil Procedure Act; Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules
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 dismissal for want of leave does not shut the door of justice permanently rather it indicates that the gate must be opened using the correct key which is the current application for leave.
The preliminary objection in view of the above cannot be sustained.
I think leaning on the constitutional quest for substantive justice I will grant leave for the reference to be filed out of time. The ends of justice will be far better served by allowing the intended Reference to be heard and determined on its merits.
This court is inclined to allow the order for stay of execution to avoid the reference being rendered an academic exercise and therefore nugatory.
The Application dated 14th May, 2026 is hereby allowed.
An order of stay of execution of the decree as adopted pursuant to the Certificate of Taxation and/or any consequential orders hereby issues pending the hearing and determination of the Reference.
Issues in the judgment
#Internal date inconsistencies: application described as dated 13th May, 2026 in one passage and 14th May, 2026 elsewhere
The ruling date is given inconsistently as 2026 in the heading/signature but '27/7/2027' in the body when referring to the related ruling delivered the same day
The taxation ruling date is stated inconsistently as 13th May, 2025 while the taxation itself is said to have been delivered on 8th August, 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government of Siaya v Olendo Orare & Samba Advocates (Environment and Land Miscellaneous Case E020 of 2026) [2026] KEELC 4826 (KLR)", Case Analysis (2026). Siaya ELC L. Misc. E020 of 2026 (Ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4826/eng@2026-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.