Magiri v Abongo (Environment and Land Case Civil Suit 184 of 2010) [2025] KEELC 2987 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a consent judgment was adopted by the court on 7/12/2011
- 2.If (a) is in the affirmative, did this court have jurisdiction to dismiss the suit?
- 3.Whether the law firm of Maina & Macharia Advocates LLP is properly on record for the plaintiff
- 4.What orders should this court issue, including an order as to costs?
Key legal issues
#Whether a valid consent judgment was adopted on 7/12/2011
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
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.
Whether the court had jurisdiction to dismiss the suit on 19/2/2018 under Order 17 Rule 2(1)
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
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.
Whether Maina & Macharia Advocates LLP was properly on record post-judgment
No - the firm did not follow the steps in Order 9 Rule 9, rendering the motion incompetent and liable to be struck out
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.
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.The notice of motion dated 4/11/2024 is hereby struck out with costs to the defendant
- 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.This file is hereby effectively marked as closed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
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.
The orders given on 19/02/2018 dismissing the plaintifi's suit with costs are hereby set aside and/or vacated in their entirety.
This iile is hereby efiectively marked as closed.
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
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.
Issues in the judgment
#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
The case number and neutral citation are not stated anywhere in the judgment text supplied
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.