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ELCDismissedNot stated in the judgment text provided· [2025] KEELC 3999 (KLR)

Maiyo alias Hellen Jeptum Bor (Suing as the Legal Administrator of the Estate of the Late Kiptiniya Arap Maiyo - Deceased) v Ngisirei (Environment & Land Case 103 of 2021) [2025] KEELC 3999 (KLR)

Environment and Land Court
20 May 2025
GOG.M.A Ong'ondo
1,872 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court at Kapsabet dismissed a bid to reinstate a dismissed application because the new lawyer was never properly allowed on record and no evidence explained the delay.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kapsabet (Ong'ondo J) determined the applicant's Notice of Motion dated 14th January 2025 seeking reinstatement of her application dated 3rd October 2024, which had been dismissed for non-attendance and want of prosecution. That earlier application had sought leave for the firm of Kipkorir, Kipkorir C. K. and Company Advocates to come on record post-judgment, with the ultimate aim of citing the respondent for contempt over the intended disposal of Land Parcel No. Nandi/Ndalat/282, in which the applicant claimed a 4-acre share as a beneficiary of the Estate of Kiptinaya Arap Maiyo (Deceased), awarded in a judgment dated 31st January 2023. The respondent opposed, denying any intention to sell the land, asserting the applicant was already in occupation of 4 acres, and contending the incoming firm was not properly on record under Order 9 Rule 9. The court framed two issues: whether the applicant's counsel was properly on record, and whether the application was merited. Applying the mandatory terms of Order 9 Rule 9, the court held the incoming firm required leave to come on record, which had not been obtained since the 3rd October 2024 application stood dismissed. On reinstatement, applying Ivita vs Kyumbu, the court found the delay of nearly two months prolonged, and the explanation of counsel's indisposition unsupported by any evidence, hence insufficient cause was not shown. The application was dismissed with costs to the applicant (borne by the applicant).

Key legal issues

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01

Whether the incoming firm of advocates is properly on record post-judgment

Holding

The firm of Kipkorir, Kipkorir C. K. and Company Advocates required leave under Order 9 Rule 9 to come on record after judgment; the dismissal of the application dated 3rd October 2024 (which sought that leave) meant the firm remained improperly on record.

Reasoning

Judgment was entered on 31st January 2023 and decree issued on 11th September 2024. The firm came on record after judgment, so Order 9 Rule 9 applied in its mandatory terms. The application seeking leave to come on record had been dismissed for non-attendance and want of prosecution, leaving the firm without the requisite order of the court.

p. 3
02

Whether the application for reinstatement was merited

Holding

The application was devoid of merit: the delay of nearly two months was prolonged, the explanation of counsel's indisposition was unevidenced, and no sufficient cause was shown.

Reasoning

The application dated 3rd October 2024 was dismissed on 18th November 2024 and the reinstatement application was lodged on 14th January 2025, nearly two months later - a prolonged delay. The claim that counsel was indisposed was unsupported by correspondence or any evidence. Mere averments without supporting evidence cannot constitute sufficient cause for reinstatement.

p. 4

Legal principles established

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  • Change of advocate after judgment requires an order of the court; the firm not properly on record cannot prosecute applications for the party.
  • Mere averments without supporting evidence do not establish sufficient cause for reinstatement of a matter dismissed for want of prosecution.
  • The test for reinstatement is whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay.

Court orders

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  1. 1.The Notice of Motion application dated 14th January 2025 is dismissed.
  2. 2.Costs to be borne by the applicant.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 3
  • Civil Procedure Rules, 2010Order 51, Order 51 Rule 16, Order 9 Rule 9
  • Constitution of Kenya, 2010Article 159(2)(b)
  • Environment and Land Court ActSection 3

Cases cited (7)

  • Shah vs Mbogo & Another
    (1967) EA 116
  • Ivita vs Kyumbu
    [1984] KLR 441
  • James Ndonyu Njogu vs Muriuki Macharia
    [2020] eKLR
  • Lalji Bhimji Shangani Builders & Contractors vs City Council of Nairobi
    [2012] eKLR
  • Julieta Marigu Njagi vs Virginia Njoki Mwangi & another
    [2022] eKLR
  • Gituro v Maki & 3 others
    (Civil Appeal (Application) E050 of 2023) [2024] KECA 1204 (KLR)
  • Municipal Council of Kisumu v Gulf Fabricators Limited & Another
    (Kisumu Civ. Application No. E103 of 2023)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya and Order 51 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Maiyo alias Hellen Jeptum Bor (Suing as the Legal Administrator of the Estate of the Late Kiptiniya Arap Maiyo - Deceased) v Ngisirei (Environment & Land Case 103 of 2021) [2025] KEELC 3999 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3999/eng@2025-05-20

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