Board of Trustees ACK Diocese of Embu v Macumo Day Secondary School & 3 others (Environment & Land Case 66 of 2016) [2024] KEELC 3524 (KLR)
The bottom line
#Kenya's Environment and Land Court reinstated a church's land suit dismissed for missing one hearing, ruling that a short, explained delay should not permanently block a fair trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the incoming advocate should be placed on record post-dismissal
The court allowed the change of advocates, holding that a dismissed suit amounts to a determination, so Order 9 Rule 9 requires a court order to effect the change.
Order 9 Rule 5 permits change of advocates by notice during the cause, but Order 9 Rule 9 requires a court order or consent where there is a change after judgment. Since the suit had been dismissed and thereby determined, the plaintiff needed an order of the court to bring Beth Ndorongo & Co. Advocates on record in place of Rugaita & Co. Advocates. The court found the prayer merited and granted it.
Whether the dismissal for non-appearance should be set aside and the suit reinstated
Yes. The plaintiff's explanation for non-appearance was satisfactory, the delay of about two months was not inordinate, and the defendants would suffer no injustice from reinstatement.
The court reviewed the suit's history and found the plaintiff had been diligent and always represented until the single missed hearing, occasioned by misdirection from its former advocate. The plaintiff learned of the dismissal on 17.03.2023 and filed the application on 23.03.2023, a delay found not inordinate. Balancing the prejudices, the court held the defendants would have a full opportunity to defend, whereas non-reinstatement would drive the plaintiff from the seat of justice without a hearing.
Legal principles established
#- Change of advocate after determination of a suit requires an order of the court under Order 9 Rule 9 of the Civil Procedure Rules.
- Reinstatement of a suit is a discretionary matter governed by the Ivita v Kyumbu test: whether the delay is prolonged and inexcusable and whether justice can nonetheless be done.
- In exercising discretion to reinstate, the court must balance the prejudice to the plaintiff if the suit is not reinstated against the prejudice to the defendant if it is.
Court orders
#- 1.The suit herein is reinstated.
- 2.The suit shall be set down for hearing within the next 60 days.
- 3.The interim orders issued on 28.02.2017 are reinstated to last until the suit is heard and determined.
- 4.The Plaintiff to file and serve a Notice of Change of Advocates within the next 14 days.
- 5.The costs of this application to be in the cause.
- Jurisdiction invoked
- Sections 3A and 3B of the Civil Procedure Act and Order 9 and Order 12 Rule 7 of the Civil Procedure Rules (inherent power to make orders necessary for the ends of justice)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Dorothy Bonareri Nyakweba (Suing as Personal Representative of the Estate of Sandra Nyakweba) v Directline Assurance Company Limited[2026] KEELRC 2509 (KLR)24 Sept 2026distinguished
Cite this brief
#Cite this brief
Caselaw, "Board of Trustees ACK Diocese of Embu v Macumo Day Secondary School & 3 others (Environment & Land Case 66 of 2016) [2024] KEELC 3524 (KLR)", Case Analysis (2024). Not stated in the judgment (Environment & Land Court, Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3524/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.