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ELCDismissedNotice of Motion dated 14th July 2025 (suit number not stated in judgment)

Mohamed v Suakei & 5 others; Kilonzo & 2 others (Interested Parties) (Environment and Land Case E234 of 2024) [2026] KEELC 601 (KLR)

Environment and Land Court (judge not identified by court name in judgment; single judge, T. Murigi J)
6 February 2026
TMT. Murigi
2,098 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to strike out a land suit for missing summons, ruling that defendants who participate without objection cannot later complain.

What this practically means

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Executive summary

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The Defendants/Applicants, by a Notice of Motion dated 14th July 2025 under Orders 5 and 51 of the Civil Procedure Rules, sought a declaration that the Plaintifi's suit had abated or, in the alternative, that it be struck out for want of summons to enter appearance, with costs. They contended that no summons was prepared, issued or served within the periods prescribed by Order 5 Rule 1(6) and Order 5 Rule 2, causing the suit to abate by operation of law. The Plaintifi opposed the application, contending that the Defendants had filed a Notice of Appointment of Advocates on 12th July 2024, filed Grounds of Opposition, and actively participated in proceedings for over a year without objection, thereby waiving any irregularity, and that no prejudice had been demonstrated; dismissing the suit would offend the overriding objective and Article 159(2)(d) of the Constitution. The court identified the sole issue as whether the suit should be struck out for failure to issue and serve summons. Noting two conflicting schools of authority, the court aligned with the view that non-issuance or non-service of summons is not per se fatal; a Defendant must demonstrate prejudice. Since the Defendants had notice of the suit, entered appearance, and participated without objection, they waived the right to challenge the proceedings, and no prejudice was shown. The court held that striking out would elevate procedural form over substantive justice. The application was dismissed with costs to the Plaintifi on 6th February 2026.

Questions the Court framed

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

  1. 1.Whether the Plaintifi's suit has abated for failure to issue and serve summons to enter appearance
  2. 2.Whether the suit should be struck out for want of summons to enter appearance

Key legal issues

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01

Effect of non-issuance and non-service of summons to enter appearance

Holding

Not per se fatal; a curable procedural lapse where the Defendant appeared and participated without objection and no prejudice is shown

Reasoning

The court noted two conflicting schools of authority: one treating non-issuance of summons as fatal to the suit, the other treating it as a curable lapse. The court adopted the pragmatic approach, relying on Tropical Foods International and Paulina Wanza Maingi. Since the Defendants filed a Notice of Appointment of Advocates, Grounds of Opposition, and actively participated, they had notice and waived any objection. No prejudice was demonstrated, so abatement or striking out was refused.

p. 4

Legal principles established

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  • Failure to issue or serve summons to enter appearance does not in itself render a suit incompetent; the Defendant must show prejudice
  • A Defendant who enters appearance and participates in proceedings without objection waives the right to challenge the validity of the suit for want of summons
  • Procedural technicalities should not defeat substantive justice under Article 159(2)(d) and Section 1B of the Civil Procedure Act

Court orders

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  1. 1.The Defendants'/Applicants' Notice of Motion dated 14th July 2025 is dismissed
  2. 2.Costs of the application to the Plaintifi

The bench

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

TM
majority

Wrote the judgment

Jurisdiction invoked
Civil Procedure Act and Civil Procedure Rules, Orders 5 and 51; Article 159(2)(d) of the Constitution

Relief refused

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Declaration that the Plaintifi's suit has abated

Defendants waived the right to object by entering appearance and participating without objection; no prejudice demonstrated

p. 5

Striking out of the Plaintifi's suit against the Defendants for want of summons

Failure to issue or serve summons is not per se fatal where the Defendant had notice and participated; striking out would elevate procedure over substantive justice

p. 5

Costs

Application dismissed with costs to the Plaintifi (the Plaintifi).

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.

This Court aligns with the second school of thought, which holds that the failure to issue or serve a summons does not, in itself, render a suit incompetent. Instead, the Defendant must show that the omission has caused prejudice.
p. 4Effect of non-issuance of summons
Participation without objection is a clear waiver of any right to challenge the validity of the proceedings.
p. 5Waiver by participation
The upshot of the foregoing is that the application is without merit and is hereby dismissed with costs to the Plaintifi.
p. 5Disposition
RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 6TH DAY OF FEBRUARY, 2026.
p. 5Final orders

Issues in the judgment

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minor

The singular issue framed in the notice of motion (abatement or striking out) is decided as one; the deponent is 'Nesiri Peter Mula' who is elsewhere described as Defendants/Applicants - party naming in the title is unclear in the judgment as provided

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, "Mohamed v Suakei & 5 others; Kilonzo & 2 others (Interested Parties) (Environment and Land Case E234 of 2024) [2026] KEELC 601 (KLR)", Case Analysis (2026). Notice of Motion dated 14th July 2025 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/601/eng@2026-02-06

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