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Case Brief · caselaw.co.ke
ELCPartially AllowedELC NO. E025 OF 2024

Laban Nduva Masai & Dorcas Mbele v Matunda C.B.O (through Chairman, Secretary & Treasurer)

Environment and Land Court of Kenya
24 September 2026
1,749 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Makueni court gave late defendants a second chance to file their defence but refused to pause the case, showing Kenyan courts will not delay justice without strong reasons.

What this practically means

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Executive summary

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The Defendants in this ELC land suit at Makueni moved the court by Notice of Motion dated 28th May 2025 seeking review of directions issued for the suit to proceed to formal proof, leave to file their defence, witness statements and documents, and a stay of proceedings pending Makueni ELCLC No. E012 of 2024 (Joseph Makusa Muthoka v Dorcas Mbele Munguti & Laban Nduva Masai). They explained that they entered appearance on 28th November 2024 but delayed filing a defence while trying to secure the statement of Joseph Muthoka, a crucial witness whose evidence depended on the outcome of an injunction application in the related suit, determined on 20th March 2025. The Plaintiffs opposed, contending the Defendants were served, gave no sufficient cause for the delay, and that the draft defence raised no triable issues. The court framed two issues: whether the directions of 24th February 2025 should be set aside, and whether the proceedings should be stayed. Finding the reasons for the delay excusable, the draft defence raising triable issues, and no prejudice to the Plaintiffs, the court set aside the formal proof directions and granted leave to file the defence and pre-trial documents. However, applying the tests in Marriot Africa International Ltd and Kenya Power v Wokabi, the court held the Applicants had not demonstrated grounds for a stay and declined prayer 3. Prayers 2 and 4 were allowed; the Defendants were to file their defence and witness statements within 14 days, with costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicants have demonstrated that the court should exercise its discretion to set aside the directions issued on 24th February, 2025
  2. 2.Whether the instant proceedings should be stayed pending the hearing and determination of MAKUENI ELCLC NO. E012 OF 2024

Key legal issues

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01

Whether to set aside directions that the suit proceed to formal proof and grant leave to file defence

Holding

Allowed - the Applicants' reasons for the delay were excusable and the draft defence raised triable issues

Reasoning

The Defendants filed a memorandum of appearance on 28th November 2024 but no defence within the fourteen days under Order 7 Rule 1. Interlocutory judgment was requested and formal proof directions taken. The court found the explanation - waiting for a crucial witness whose statement depended on an injunction application in a related suit - excusable, noted the draft defence raised triable issues, and found no prejudice to the Respondents.

p. 5
02

Whether proceedings should be stayed pending Makueni ELCLC No. E012 of 2024

Holding

Refused - Applicants did not discharge the onus of establishing grounds for stay

Reasoning

Relying on Marriot Africa International Ltd and Kenya Power & Lighting Co Ltd v Wokabi, the court noted the onus lies on the Applicants and that stay requires a prima facie arguable case, expeditious filing and sufficient cause in the interest of justice. The Applicants failed to demonstrate the basis for stay, so prayer 3 was declined.

p. 6

Legal principles established

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  • Stay of proceedings requires genuine and compelling grounds given the constitutional principle that justice shall not be delayed
  • Reasons for failure to file a defence that are excusable, coupled with a draft defence raising triable issues and no prejudice to the plaintiff, justify setting aside formal proof directions

Court orders

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  1. 1.Prayer 2 allowed: directions that the suit proceed by formal proof set aside and Defendants granted leave to file defence, witness statements and documents
  2. 2.Defendants to file their statement of defence and witness statements within 14 days
  3. 3.Costs of the application to be in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 3, 13(7) and 19(2) of the Environment and Land Court Act and Order 45 Rule 1 of the Civil Procedure Rules

Relief refused

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Stay of proceedings pending hearing and determination of Makueni ELCLC No. E012 of 2024 (prayer 3)

Applicants failed to demonstrate genuine and compelling grounds for stay

p. 6

Costs

Costs of the application to be in the cause (prayer 4 allowed)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I therefore allow prayers 2 and 4 of the application dated 28th May, 2025. The Defendants to file their statement of defence and witness statements within 14 days.
p. 6Final orders - review allowed, stay refused
After careful consideration of the reasons for failure to file a defence within the stipulated period by the Applicants, the court finds that the said reasons are excusable.
p. 5Excusable delay in filing defence
Whilst this Court has unfettered jurisdiction to issue an order of stay of proceedings, it must be satisfied that there are genuine and compelling grounds to justify such an order
p. 6Test for stay of proceedings

Issues in the judgment

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minor

Submissions dated 2026 while application and events are 2025; dates appear inconsistent

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, "Laban Nduva Masai & Dorcas Mbele v Matunda C.B.O (through Chairman, Secretary & Treasurer)", Case Analysis (2026). ELC NO. E025 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5611/eng@2026-09-24

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