Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutNot stated in the judgment

Magiri v Abongo (Environment and Land Case Civil Suit 184 of 2010) [2025] KEELC 2987 (KLR)

Environment and Land Court
1 April 2025
2,018 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The court agreed the 2018 dismissal was invalid but struck out the plaintiff's application because his new lawyers skipped a mandatory procedural step, closing the file.

What this practically means

#

Executive summary

#
This ruling by the Environment and Land Court at Machakos (A. Y. Koross, J) determined a notice of motion dated 4/11/2022 by the plaintiff, Patrick Mwangi Wagiri, seeking to set aside orders of 19/02/2018 dismissing his suit for want of prosecution, to reinstate the suit and to enforce a consent recorded on 7/12/2011 by effecting clause (c) of the plaint as the judgment of the court. The consent required the defendant, Michael Abongo, to pay Kshs 800,000 and transfer plot no. 12715/4584 to the plaintiff, while the plaintiff was to transfer plot no. 12715/4577 to the defendant, with a default clause triggering prayer (c) of the plaint. The court framed four issues. First, it found the consent was signed, adopted as a judgment on 7/12/2011, and never set aside, stayed or appealed against, so it remained a conclusive valid judgment. Second, since a judgment was already in existence as at 19/2/2018, the court lacked jurisdiction to dismiss the suit under Order 17 Rule 2(1); the dismissal was a nullity ab initio and was set aside and/or vacated in its entirety. Third, however, the incoming law firm, Maina & Macharia Advocates LLP, had not complied with Order 9 Rule 9 of the Civil Procedure Rules when coming on record after judgment, rendering the motion incompetent. The court also struck out the defendant's submissions for surpassing the five-page limit, applying Okoiti v Cabinet Secretary for the National Treasury (Supreme Court). The motion was struck out with costs to the defendant and the file marked as closed. Note: the final orders refer to a motion dated 4/11/2024, inconsistent with the 4/11/2022 date elsewhere.

Questions the Court framed

#

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

  1. 1.Whether a consent judgment was adopted by the court on 7/12/2011
  2. 2.If (a) is in the affirmative, did this court have jurisdiction to dismiss the suit?
  3. 3.Whether the law firm of Maina & Macharia Advocates LLP is properly on record for the plaintiff
  4. 4.What orders should this court issue, including an order as to costs?

Key legal issues

#
01

Whether a valid consent judgment was adopted on 7/12/2011

Holding

Yes - the consent was signed by counsel for both parties, adopted as a judgment of the court, and has never been set aside, stayed or appealed against; it remains a conclusive valid judgment

Reasoning

The court recorded that on 7/12/2011 the parties' counsels appeared and entered a written consent on the terms set out, signed by the advocates, and it was adopted as a judgment. Nothing on the record shows it was set aside, stayed or appealed against. The defendant's later transfer of the suit land to a third party does not undo the judgment, which provided alternate relief in clause (c) of the plaint.

p. 4
02

Whether the court had jurisdiction to dismiss the suit on 19/2/2018 under Order 17 Rule 2(1)

Holding

No - once a judgment existed, the dismissal for want of prosecution was a nullity ab initio and amenable to being set aside ex debito justitiae

Reasoning

Order 17 Rule 2(1) applies to suits in which no application or step has been taken for one year and which have not been concluded. Since a consent judgment was already adopted in 2011, there was a judgment in existence as at 19/2/2018, so the provision had no application. Only a setting aside of the consent judgment could have permitted such a dismissal. The court also noted the defendant's counsel present on 19/2/2018 failed to inform the court of the consent judgment.

p. 4
03

Whether Maina & Macharia Advocates LLP was properly on record post-judgment

Holding

No - the firm did not follow the steps in Order 9 Rule 9, rendering the motion incompetent and liable to be struck out

Reasoning

Where there is a consent judgment adopted as a judgment of the court, any change of advocate post-judgment requires either a formal application with notice to all parties or a consent filed between the outgoing and incoming advocates. The mischief of the provision is to prevent litigants avoiding fees of the outgoing advocate and to inform the court and parties of the change. The incoming firm filed neither, so the motion filed by it was incompetent.

p. 5

Legal principles established

#
  • A consent judgment or order has a contractual effect and can only be set aside on grounds which would justify setting aside a contract or if certain conditions remain to be fulfilled which are not carried out
  • Once a consent has been adopted as a judgment of the court, the court loses jurisdiction to dismiss the suit for want of prosecution under Order 17 Rule 2(1); such a dismissal is a nullity
  • After judgment has been passed, a change of advocate or a party acting in person requires either a formal application with notice to all parties or a consent between the outgoing and incoming advocates, per Order 9 Rule 9 of the Civil Procedure Rules

Court orders

#
  1. 1.The notice of motion dated 4/11/2024 is hereby struck out with costs to the defendant
  2. 2.The orders given on 19/02/2018 dismissing the plaintiff's suit with costs are hereby set aside and/or vacated in their entirety
  3. 3.This file is hereby effectively marked as closed

The bench

#

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

majority

Wrote the judgment

Jurisdiction invoked
Original civil suit jurisdiction; application under the Civil Procedure Rules, with Article 159(2)(d) of the Constitution invoked by the plaintiff

Relief refused

#

Reinstatement of the suit and enforcement of the consent order dated 7/12/2011 by effecting clause (c) of the plaint as the judgment of the court, and issuance of a decree in those terms

The motion was struck out as incompetent because the incoming law firm did not comply with Order 9 Rule 9 of the Civil Procedure Rules when coming on record post-judgment; also, the plaintiff bore responsibility for not extracting a decree for close to 14 years

p. 5

Costs

Costs of the notice of motion awarded to the defendant

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The notice of motion dated 4/11/2024 is hereby struck out with costs to the defendant.
p. 5Final orders - striking out of the motion
The orders given on 19/02/2018 dismissing the plaintifi's suit with costs are hereby set aside and/or vacated in their entirety.
p. 5Final orders - vacation of dismissal for want of prosecution
This iile is hereby efiectively marked as closed.
Final orders - closure of the file
It is settled law that a consent judgment or order has a contractual efiect and can only be set aside on grounds which would justify setting aside a contract
p. 3Binding effect of consent judgments
this court finds the dismissal was a nullity ab initio, and any determination it made on 19/2/2018 is amenable to being set aside ex debito justitiae.
p. 4Jurisdiction to dismiss a suit in which judgment has been entered

Issues in the judgment

#
minor

The motion is dated 4/11/2022 throughout the judgment, but the final order refers to a 'notice of motion dated 4/11/2024', an internal inconsistency in dates

minor

The case number and neutral citation are not stated anywhere in the judgment text supplied

minor

The judgment describes itself variously as a ruling on a motion and as a judgment; it is delivered as a ruling striking out the motion while also setting aside the dismissal orders

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Magiri v Abongo (Environment and Land Case Civil Suit 184 of 2010) [2025] KEELC 2987 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2987/eng@2025-04-01

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