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ELCOtherELC Civil Suit No. 64 of 2016 (application dated 13th August, 2024)· [2025] KEELC 7667 (KLR)

Byegon v Omega (Environment and Land Case 64 of 2016) [2025] KEELC 7667 (KLR)

Environment and Land Court
6 November 2025
LOL. A. Omollo
1,932 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a landowner's bid to revive his dismissed suit because he filed it himself without the court's permission required after judgment.

What this practically means

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Executive summary

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This ruling by L. A. Omollo, J of the Environment and Land Court at Kericho, delivered on 6th November 2025, determines the Plaintiff/Applicant's Notice of Motion dated 13th August 2024 seeking reinstatement of his suit, ELC Civil Suit No. 64 of 2016, which was dismissed on 6th December 2021 for want of prosecution. The suit, filed by plaint dated 26th August 2016, sought eviction, possession of suit land and damages for trespass. The applicant explained that his then advocates, Motanya & Company Advocates, failed to attend court or update him, and the advocate's proprietor relocated to the United States; he only discovered the dismissal when he visited the court registry in 2024. He relied on the principle that a litigant should not be punished for the mistakes of counsel, invoking Article 159 of the Constitution. The Defendant/Respondent filed no response or submissions. The court framed a single issue: whether the application had merit. Relying on Njue Ngai v Ephantus Njiru Ngai and Judy Mwendwa v Oxfam GB, the court held that dismissal for want of prosecution amounts to a judgment, so a previously represented party must obtain leave under Order 9 Rule 9 of the Civil Procedure Rules before acting in person. Although the applicant served a Notice to Act in person on his former advocates and the respondent, no such document was filed, and even if filed it would not satisfy Order 9 Rule 9. The application was accordingly struck out with no order as to costs.

Key legal issues

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01

Whether the Notice of Motion dated 13th August, 2024 seeking reinstatement of the suit has merit

Holding

The application lacks merit because the applicant filed it in person without first obtaining leave of the Court as required by Order 9 Rule 9 of the Civil Procedure Rules, since the dismissal of the suit amounted to a judgment

Reasoning

The court accepted the applicant's account that his former advocates failed to attend court and to inform him of the hearing date, leading to dismissal for want of prosecution. However, following Njue Ngai v Ephantus Njiru Ngai and Judy Mwendwa v Oxfam GB, dismissal for want of prosecution amounts to a judgment. A party previously represented must therefore obtain a court order under Order 9 Rule 9 before acting in person. The applicant's Notice to Act in person was served but never filed, and even if filed it would not satisfy Order 9 Rule 9's leave requirement. The application was therefore struck out.

p. 5

Legal principles established

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  • A dismissal of a suit for want of prosecution amounts to a judgment in that suit
  • A party who previously engaged an advocate cannot act in person after judgment without an order of the Court under Order 9 Rule 9

Court orders

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  1. 1.The Plaintifi/Applicant's Notice of Motion application dated 13th August, 2024 is struck out with no order as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 3 & 3A
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 9 Rule 9
  • Constitution of KenyaArticle 159

Cases cited (5)

  • Belinda Murai & Others vs Amos Wainanina
    (1978) LLR 2782 (CALL)
  • Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 Others
    [2013] eKLR
  • Njue Ngai v Ephantus Njiru Ngai & another
    [2016] KECA 805 (KLR)
  • Peter Ngome vs Plantex Company Limited
    [1983] eKLR
  • Judy Mwendwa & another v Oxfam GB Kenya Programme
    [2019] KEELRC 1248 (KLR)
Jurisdiction invoked
Sections 1, 1A, 3 & 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules

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, "Byegon v Omega (Environment and Land Case 64 of 2016) [2025] KEELC 7667 (KLR)", Case Analysis (2025). ELC Civil Suit No. 64 of 2016 (application dated 13th August, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7667/eng@2025-11-06

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