Garden Hotel Limited v Maingi & 2 others (As the legal representatives of the Estate of Laban Maingi Kitele - Deceased) (Environment and Land Case Civil Suit 15 of 2020) [2025] KEELC 1256 (KLR)
The bottom line
#A Machakos court refused to reinstate a dismissed land suit because the new lawyers filed the application before formally taking over the file.
What this practically means
#Executive summary
#Key legal issues
#Whether the incoming law firm was properly on record when filing the motion
The motion was incompetent because the current firm filed it on 24/01/2024 before filing a notice of change/appointment; the former firm remained on record under Order 9 Rule 5 CPR.
Order 9 Rule 5 CPR requires notice of change of advocate to be filed and served before the former advocate ceases to act. The court scrutinised the record and found the motion was filed by the new firm at 4:28 pm on 24/01/2024, while the notice of appointment was only filed on 25/01/2024 at 8:50 am, with registry backstamping suggesting mischief. Accordingly, at the time of filing, the previous firm was still on record and the motion was incompetent.
Whether sufficient cause was shown to set aside the dismissal orders
No; the reasons of counsel's court commitments and virtual-access challenges were unsubstantiated, the plaintiff's director was not truthful about attending court, and the three-month delay showed lack of diligence.
Order 12 Rule 7 allows the court to set aside a dismissal on such terms as are just, requiring sufficient cause. The applicants relied on counsel's other court engagements and virtual connectivity problems but produced no cause lists or evidence. The hearing started at 2:20 pm and no attempt to connect or to contact the defence was shown. Mr Ndambuki's claim to have attended court was rejected as a smokescreen, and the parties only moved three months later when submissions were served; the old case would be prejudiced by reinstatement.
Legal principles established
#- Unless and until a notice of change of advocates is filed and served, the former advocate remains the advocate of the party until final conclusion of the cause, including review or appeal; a motion filed by a firm not properly on record is incompetent.
- The discretion to set aside ex parte orders is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay; sufficient cause must be tendered and substantiated.
Court orders
#- 1.The notice of motion dated 24/01/2024 is hereby struck out with costs to the defendant.
- 2.The plaintiff is hereby directed to file and serve his written submissions of not more than 10 pages within 21 days hereof.
- 3.Directions shall be issued on 27/5/2025.
- Jurisdiction invoked
- Inherent discretion under Order 12 Rule 7 of the Civil Procedure Rules read with Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Garden Hotel Limited v Maingi & 2 others (As the legal representatives of the Estate of Laban Maingi Kitele - Deceased) (Environment and Land Case Civil Suit 15 of 2020) [2025] KEELC 1256 (KLR)", Case Analysis (2025). Not stated in the judgment (Machakos ELC; notice of motion dated 24/01/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1256/eng@2025-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.