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ELCDismissedELC JR No. E1B of 2024

Republic v The Chief Magistrate Court, Milimani Commercial Law Court & another; Ex parte Daniel Karwe Muikia

Environment and Land Court of Kenya
30 September 2026
JOJ. M. Onyango
2,234 words in judgment
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to strike out a judicial review case filed late, ruling that delay alone is not abuse of court process.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Thika on an application by the 1st interested party, Hezekiah Kariuki Mwangi, seeking to strike out the ex parte applicant's substantive Notice of Motion dated 12 August 2024 as an abuse of court process. Leave to institute judicial review had been granted on 25 July 2024 on condition that the substantive motion be filed and served within 21 days, failing which the leave and stay orders would lapse. The motion was not in the Court's tracking system and was only uploaded on 30 January 2025, when counsel was given time to verify the position. The ex parte applicant, Daniel Karwe Muikia, explained that his former advocate had assured him the motion was filed on 12 August 2024 but failed to do so. The Court framed one issue: whether the failure to file within 21 days warranted striking out. Applying Order 2 Rule 15 of the Civil Procedure Rules, D.T. Dobie and Co-operative Merchant Bank, and Article 159(2)(d) of the Constitution, the Court held that striking out is a drastic, discretionary remedy to be exercised sparingly. The delay, though substantial, did not demonstrate an intention to abuse process; the motion had been prepared, the Court had continued to issue directions in the interim, and no irreparable prejudice was shown. The application was dismissed, the substantive motion allowed to proceed subject to directions on proper e-filing and service, 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 failure by the Ex-parte Applicant to file the substantive Notice of Motion within the twenty-one (21) days stipulated in the Court's Ruling of 25th July 2024 warrants the striking out of the substantive Motion

Key legal issues

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01

Whether late filing of the substantive judicial review motion beyond the 21-day leave condition warranted striking out

Holding

No - the delay did not amount to abuse of process; the Motion was regularized and allowed to proceed

Reasoning

The Motion had been prepared and counsel represented it was filed; its absence from the electronic tracking system explained the default. The Court continued issuing directions during the period, never treating the matter as terminated. No irreparable prejudice to the interested party was shown. Article 159(2)(d) and the overriding objective favoured regularization over the drastic remedy of striking out, though the default informs costs.

p. 7

Legal principles established

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  • The power to strike out pleadings under Order 2 Rule 15 is discretionary and drastic, to be exercised sparingly and only in the clearest of cases
  • Article 159(2)(d) requires courts to distinguish procedural defaults going to the root of a matter from those that can be regularized without prejudice

Court orders

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  1. 1.The Application by the 1st Interested Party dated 29 April 2025 is dismissed
  2. 2.The substantive Notice of Motion dated 12 August 2024 shall remain on record and proceed for hearing
  3. 3.The Ex-parte Applicant to ensure the substantive Motion, together with all supporting documents, is properly reflected in the Court's electronic filing and tracking system and duly served on all parties entitled to service
  4. 4.The costs of the Application shall be in the cause

The bench

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

JO
majority

Wrote the judgment

Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court (leave granted on 25 July 2024); application under Order 2 Rule 15 of the Civil Procedure Rules

Relief refused

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Striking out of the Notice of Motion dated 12 August 2024 as an abuse of court process

Delay, though substantial, did not demonstrate abuse of process; striking out would be a disproportionate drastic remedy

Costs of the application to the 1st Interested Party

Costs were made costs in the cause instead

p. 10

Costs

The costs of the Application shall be in the cause

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.

The power to strike out pleadings under Order 2 Rule 15 of the Civil Procedure Rules is a discretionary power. It is also a drastic remedy which ought to be exercised sparingly and only in the clearest of cases.
p. 6Striking out - sparing exercise
I therefore find that, although the Ex-parte Applicant did not strictly comply with the Court's direction of 25 July 2024, the circumstances disclosed in the record do not warrant the striking out of the substantive Motion as an abuse of the process of the Court.
p. 9Disposition on abuse of process
Consequently, the Application by the 1 st Interested Party dated 29 April 2025 is hereby dismissed.
p. 10Final orders
The substantive Notice of Motion dated 12 August 2024 shall remain on record and shall proceed for hearing.
p. 10Final orders

Issues in the judgment

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minor

Date discrepancy on the application

minor

Delivery date appears to be in the future (2026)

minor

Typographical error in the rules cited

minor

Delivered at Malindi though the file is a Thika ELC matter

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, "Republic v The Chief Magistrate Court, Milimani Commercial Law Court & another; Ex parte Daniel Karwe Muikia", Case Analysis (2026). ELC JR No. E1B of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6143/eng@2026-09-30

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