Mutengu & 2 others (Suing in their Capacity as the Chairperson, Secretary, Treasurer and on Behalf of of 650 Members of Sabati Self Help Group) v Numerical Machining Complex Limited & 3 others (Environment and Land Petition E008 of 2022) [2026] KEELC 2131 (KLR)
The bottom line
#The Machakos Environment and Land Court refused to strike out a 2022 land rights petition, finding the delay excusable because settlement talks and the respondent's own failures explained it.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition should be struck out for want of prosecution
No - the threshold for striking out was not met
The court applied the Ivita v Kyumbu principles: the delay must be demonstrated, be excessive and inexcusable, and cause prejudice. Here, the petitioners were served with the 2022 cease-acting application (per the return of service sworn by Kyalo Makau) but their delay thereafter was partly excusable - they pursued settlement correspondence which the 1st respondent ignored, and the 1st respondent itself failed to serve the petitioners personally as directed by the court on 13 June 2024. The petitioners' late diligence in checking the file in September 2025 was accepted, and no sufficient prejudice outweighing a trial on the merits was shown.
Whether the petitioners were served with the application to cease acting dated 8 September 2022
Yes - their assertion of non-service was unfounded
A return of service sworn by Kyalo Makau on 19 September 2022 detailed service of the chairman at 10:30 am on 9 September 2022 in the presence of the secretary. The petitioners neither contested the details nor sought to cross-examine the process server, and they failed to appear on 25 October 2022 when the application was listed for hearing. Non-service of that application therefore could not explain the delay.
Legal principles established
#- A party who initiates a dispute must take all necessary steps to ensure it is heard and concluded without unnecessary delay
- The discretion to dismiss a suit for want of prosecution must be exercised judicially considering whether the delay is excessive and inexcusable and whether the applicant suffers prejudice
Court orders
#- 1.The notice of motion dated 28 April 2025 seeking to strike out the petition for want of prosecution is dismissed
- 2.Costs of the application in the cause
- 3.A mention date to be set for purposes of pre-trial directions
- Jurisdiction invoked
- Article 159(2)(b) of the Constitution; Rules 3(6) and 8 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules); Sections 1A, 1B, 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutengu & 2 others (Suing in their Capacity as the Chairperson, Secretary, Treasurer and on Behalf of of 650 Members of Sabati Self Help Group) v Numerical Machining Complex Limited & 3 others (Environment and Land Petition E008 of 2022) [2026] KEELC 2131 (KLR)", Case Analysis (2026). Not stated in the ruling (petition dated 30 March 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2131/eng@2026-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.