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ELCPartially AllowedNot stated in the judgment

Mwanzia & another v County Government of Makueni & another (Suing in Their Capacity as the Legal Representatives to the Estate of Samuel Nyingi Mbondo - Deceased) (Environment and Land Case E039 of 2024) [2025] KEELC 6785 (KLR)

Environment and Land Court (court designation not expressly stated in the judgment)
9 October 2025
1,934 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court reinstated a county government's dismissed application but rejected its attempt to end the suit over consent disputes.

What this practically means

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Executive summary

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This ruling by Hon. E. O. Obaga, Judge, determined two interlocutory matters in a suit in which the Plaintiffs, suing as legal representatives of the Estate of Samuel Nyingi Mbondo (Deceased), apparently challenge matters relating to water provision in Makueni County. First, the 1st Defendant's Notice of Motion dated 7th April 2025 sought to set aside orders of 26th March 2025 dismissing its application dated 13th March 2025 for non-attendance, and to reinstate that application. The 1st Defendant attributed its non-attendance to late notice of hearing directions via the court's CTS system, denying indolence or negligence. The 2nd Plaintiff opposed, asserting that directions had been uploaded on 17th March 2025 and parties notified by text on 18th March 2025, and that the application was an afterthought aimed at delaying the main suit. Applying CMC Holdings Ltd v James Mumo Nzioki and Shah v Mbogo, and the overriding objective in Section 1A of the Civil Procedure Act, the court found the non-attendance was an excusable mistake: the applicant had consistently attended court, filed the reinstatement application within about fourteen days, and no prejudice to the respondents was established. The motion was allowed in terms of prayers 2 and 3. Second, the 1st Defendant's preliminary objection asserted that the Plaintiffs lacked locus standi because only two of four administrators of the estate consented to the suit. Applying Mukisa Biscuit and Oraro v Mbaja, the court held the objection was blurred by contested factual issues and was incompetent, dismissing it with costs. The 2nd Defendant did not enter appearance.

Questions the Court framed

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

  1. 1.Whether the Court ought to set aside the order dismissing the application dated 13th March, 2025 and order a reinstatement thereof
  2. 2.Whether the 1st Defendant's preliminary objection (that the Plaintiffs lack locus standi as only two of four administrators consented to the suit) is merited

Key legal issues

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01

Setting aside dismissal for non-attendance

Holding

The dismissal order was set aside and the application reinstated because the applicant's non-attendance was an excusable mistake, the application to reinstate was filed promptly (about 14 days), the applicant had attended court consistently, and no prejudice was established by the respondents.

Reasoning

The court applied the discretionary principles in CMC Holdings and Shah v Mbogo, tempered by the overriding objective under Section 1A of the Civil Procedure Act. Consistent attendance lent credence to the explanation; prompt filing and absence of demonstrated prejudice favoured reinstatement in the interest of justice and access to justice.

p. 3
02

Preliminary objection on locus standi of administrators

Holding

The preliminary objection failed because it depended on contested facts (whether all four administrators/family members consented to the suit), and therefore was not a pure point of law.

Reasoning

Applying Mukisa Biscuit and Oraro v Mbaja, a preliminary objection must rest on facts assumed correct from the pleadings. The 1st Defendant's assertion that two of four administrators had not consented was disputed by the Plaintiffs on affidavit, requiring ascertainment of facts; such an objection cannot stand.

p. 4

Legal principles established

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  • Discretion to set aside dismissal or ex parte orders exists to avoid injustice from excusable mistake, not to assist deliberate obstruction
  • A preliminary objection must be a pure point of law, not blurred with contested facts

Court orders

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  1. 1.The 1st Defendant's Notice of Motion dated 7th April, 2025 is allowed in terms of prayers 2 and 3
  2. 2.The orders dismissing the application dated 13th March, 2025 and all consequential orders are set aside
  3. 3.The application dated 13th March, 2025 is reinstated for determination on its merits
  4. 4.The 1st Defendant's preliminary objection is dismissed with costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 159 of the Constitution; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act

Relief refused

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Preliminary objection seeking dismissal of the suit for want of locus standi

The objection was blurred by contested factual details and did not meet the pure point of law threshold in Mukisa Biscuit

p. 4

Costs

Preliminary objection dismissed with costs; no costs order stated in respect of the Notice of Motion

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.

In the end, the 1st Defendant’s Notice of Motion dated 7th April, 2025 is meritorious and is hereby allowed in terms of prayers 2 and 3. Conversely, the 1st Defendant’s preliminary objection is incompetent and is hereby dismissed with costs.
p. 4Final orders - application allowed, preliminary objection dismissed
The Plaintifis/Respondents did not advance any valid reasons as to why the dismissal order should not be set aside and hence no prejudice has been established.
p. 3Absence of prejudice to respondents
Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.
p. 3Order 12 Rule 7 - power to set aside dismissal

Issues in the judgment

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minor

The judgment states 'the mistake was inexcusable' where the context indicates 'excusable' was intended

minor

The Applicants' submissions on the preliminary objection cite Section 79 of the Law of Succession Act but the passage describes vesting of the estate in personal representatives, without quoting its text; case number and court station are not stated in the judgment

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, "Mwanzia & another v County Government of Makueni & another (Suing in Their Capacity as the Legal Representatives to the Estate of Samuel Nyingi Mbondo - Deceased) (Environment and Land Case E039 of 2024) [2025] KEELC 6785 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6785/eng@2025-10-09

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