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ELCAllowedNot stated in the judgment

Mwanzia & another (Suing in their capacity as the legal representatives to the estate of Samuel Nyingi Mbondo - Deceased) v County Government of Makueni & another (Land Case E039 of 2024) [2026] KEELC 1444 (KLR)

Environment and Land Court
12 March 2026
1,817 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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Kenya's Environment and Land Court gave Makueni County Government a second chance, setting aside injunction orders because deciding disputes on their merits matters more than punishing lapses.

What this practically means

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Executive summary

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The 1st Defendant, the Makueni County Government through its County Secretary, moved the Environment and Land Court by Notice of Motion dated 13th March, 2025 under Section 13(5)(a) of the Environment and Land Court Act and Order 40 Rule 1 of the Civil Procedure Rules, seeking to set aside ex parte temporary injunction orders issued on 3rd March, 2025 restraining the Defendants from entering, constructing or installing water pipes and solar panels on land known as Makueni/UNOA/25, and seeking leave to file responses out of time to the Plaintiffs' application dated 25th November, 2024. The Applicant argued it was never served, that the Plaintiffs failed to disclose that two of the four administrators of the estate of Samuel Nyingi Mbondo did not consent to the suit, that occupation predated the orders, and that public interest in water supply for Kaiti Sub-County favoured setting aside the orders. The Plaintiffs, through Margaret Antony Mutua's replying affidavit, proved service by email on 10th February, 2025 with a return of service filed on 28th February, 2025, and maintained the suit concerned a distinct USAID-financed Kaiti II Water Supply Project. The court framed one issue: whether the Applicant met the threshold for setting aside the orders. Relying on CMC Holdings Ltd v James Mumo Nzioki, Shah v Mbogo, Patel v EA Cargo Handling Services and Essanji v Solanki, the court found service was duly effected and unchallenged, but held that the discretion to set aside ex parte orders serves substantive justice. The application was filed only ten days after the orders, causing no inordinate delay and no prejudice, and the Defendant had removed its equipment. The application was allowed in terms of prayers (3) and (4), 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 Applicant has met the threshold for setting aside the orders dated 3rd March, 2025

Key legal issues

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01

Whether the Applicant met the threshold for setting aside the ex parte orders issued on 3rd March 2025

Holding

Yes. Service was properly effected but the court, in the interest of substantive justice and given the absence of inordinate delay and lack of prejudice, set aside the orders and granted leave to file responses out of time.

Reasoning

The court found service of the hearing notice was proved by a return of service sworn on 28/02/2025 and unchallenged. The Applicant gave no explanation for non-attendance. Nevertheless, the discretion under Orders 12 Rule 7 and 51 Rule 15 is intended to avoid injustice; the suit concerns a county water project on the Plaintiffs' land, and the 1st Defendant has since removed its equipment. The application was filed only ten days after the impugned orders, so there was no inordinate delay and no prejudice to the Respondents.

p. 4

Legal principles established

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  • The discretion to set aside ex parte orders is meant to prevent injustice or hardship from excusable mistake, and does not assist a party who deliberately obstructed the course of justice; however, the substance of disputes should ordinarily be determined on the merits.

Court orders

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  1. 1.Set aside the orders issued on 3rd March, 2025 (prayer 3)
  2. 2.The application dated 25th November, 2024 by the Plaintiffs/Applicants to be set down for hearing on its merits and the Defendants granted leave to file their responses out of time (prayer 4)
  3. 3.Costs shall 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
Section 13(5)(a) of the Environment and Land Court Act and Order 40 Rule 1 of the Civil Procedure Rules

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 instant application is meritorious and is hereby allowed in terms of prayers (3) and (4). Costs shall be in the cause. It is so ordered.
p. 4Final orders allowing the application
This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.
p. 4Principles for setting aside ex parte orders
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 statutory basis

Issues in the judgment

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minor

Chronological inconsistency: the replying affidavit is described as sworn on 20th January, 2026 and submissions dated 16th and 21st January, 2026, while the ruling recites events of March 2025; the dates may be misprinted but the ruling itself is dated 12th March, 2026.

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 (Suing in their capacity as the legal representatives to the estate of Samuel Nyingi Mbondo - Deceased) v County Government of Makueni & another (Land Case E039 of 2024) [2026] KEELC 1444 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1444/eng@2026-03-12

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