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ELCDismissedNot stated in the extract (Notice of Motion dated 10th March 2025 in ELC suit concerning L.R. No. 3734/15 Lavington Nairobi)· [2025] KEELC 6545 (KLR)

Makoffu & another v Canuck Holdings Limited & 4 others (Environment and Land Case 231 of 2018) [2025] KEELC 6545 (KLR)

Environment and Land Court
30 September 2025
5,297 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to revive a land suit dismissed after the plaintiffs repeatedly failed to prosecute it, confirming that litigants—not their lawyers—bear responsibility for delay.

What this practically means

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Executive summary

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The Plaintiffs moved the court by Notice of Motion dated 10th March 2025 under Sections 1, 1A, 3A and 7 of the Civil Procedure Act, Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules and Article 159(d) of the Constitution, seeking to set aside and reinstate their suit which was dismissed for want of prosecution on 23rd January 2025, when their counsel's advocate was unwell and a sick note was not available. The 2nd and 3rd Defendants opposed, contending that the application was filed without leave after judgment by a firm not on record, that the Plaintiffs had been indolent in a suit filed in 2018 with multiple adjournments, and that the illness did not constitute sufficient cause. The court framed two issues: whether the application offended Order 9 Rule 9 and 10, and whether the suit should be reinstated. On representation, the court held the initial non-compliance with Order 9 Rule 9 was a curable procedural technicality, adopted the consent filed on 2nd June 2025 as an order of the court, guided by Tobias M. Wafubwa v Ben Butali. On reinstatement, applying Shah v Mbogo, BML v WM and Savings and Loans v Susan Wanjiru Muritu, the court held the Plaintiffs failed to demonstrate sufficient cause: counsel's illness was known the day before, no credible medical evidence was tendered, and the record showed gross indolence. The application dated 10th March 2025 was dismissed, the suit stands dismissed as ordered on 23rd January 2025, and the Plaintiffs were ordered to bear the costs of the application.

Key legal issues

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01

Whether the application offended Order 9 Rule 9 and 10 of the Civil Procedure Rules

Holding

The application was initially filed in contravention of Order 9 Rule 9, but the defect was cured by the subsequently filed consent between the outgoing and incoming advocates, which the court adopted as its order since no prejudice was occasioned

Reasoning

The current advocates came on record after judgment without leave. The court outlined two schools of thought on the effect of non-compliance - mandatory striking out versus curable procedural irregularity - and adopted the latter approach, guided by Tobias M. Wafubwa v Ben Butali and Boniface Kiragu Waweru v James K. Mulinge. The consent filed on 2nd June 2025 was unopposed and occasioned no prejudice, so it was adopted as an order of the court.

p. 6
02

Whether the court should reinstate the suit dismissed on 23rd January 2025

Holding

The application was dismissed: the Plaintiffs failed to demonstrate sufficient cause for non-attendance and their record of indolence disentitled them to the discretionary relief

Reasoning

Under Order 12 Rule 7 the court has power to set aside a dismissal upon such terms as may be just, but the discretion must be exercised judiciously. The court found a string of adjournments attributable to the Plaintiffs, counsel's illness was known the day before the hearing yet no credible medical evidence was presented, and a litigant cannot hide behind counsel's mistakes. No legitimate reason explained the non-attendance on 23rd January 2025.

Legal principles established

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  • Once judgment has been entered, a change of advocates takes effect only upon a court order or a consent duly filed between the outgoing and incoming advocates under Order 9 Rule 9
  • Non-compliance with Order 9 Rule 9 is a curable procedural technicality where it does not go to the root of the proceedings or cause prejudice
  • The discretion to set aside a dismissal and reinstate a suit must be exercised judiciously and is not designed to assist a party who has deliberately obstructed or delayed the cause of justice
  • An applicant seeking to set aside a dismissal must demonstrate sufficient cause, which must be rational, plausible, logical, convincing, reasonable and truthful
  • A suit belongs to the litigant and not the advocate; a litigant bears the duty to prosecute the case diligently and cannot rely solely on counsel's mistakes
  • Although dismissal of a suit is drastic, the right to be heard must be exercised in a manner that upholds procedural fairness and does not occasion undue delay or prejudice to the opposing party
  • Order 12 Rule 7 vests the court with jurisdiction to set aside or vary a judgment or dismissal order upon such terms as may be just

Court orders

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  1. 1.The Application dated 10th March 2025 is dismissed
  2. 2.The suit stands dismissed as ordered by the court on 23rd January 2025
  3. 3.The Plaintiffs shall bear the costs of the Application
Jurisdiction invoked
Order 12 Rule 7 and Sections 1, 1A, 3A and 7 of the Civil Procedure Act; Article 159(d) of the Constitution of Kenya

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, "Makoffu & another v Canuck Holdings Limited & 4 others (Environment and Land Case 231 of 2018) [2025] KEELC 6545 (KLR)", Case Analysis (2025). Not stated in the extract (Notice of Motion dated 10th March 2025 in ELC suit concerning L.R. No. 3734/15 Lavington Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6545/eng@2025-09-30

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