Archer & another v Archer & 3 others (Environment and Land Case 345 of 2017) [2026] KEELC 1492 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a deceased plaintiff's estate to continue a long-running land case, ruling that procedural mistakes should not defeat substantive justice.
What this practically means
#Executive summary
#Key legal issues
#Whether Harit Sheth Advocates were properly on record post-judgment
The firm was not properly on record absent a court order, but the defect was curable within the omnibus application which included a prayer for leave to come on record.
Order 9 Rule 9 mandates that a change of advocates after judgment shall not be effected without an order of the court. The consent from Bryant & Associates had not been adopted as an order of the Court and no separate application for leave had been filed. However, since the present motion included a prayer for leave to come on record, the court held the defect curable within the same application, relying on Lalji Bhimji Sanghani Builders, and determined the prayer on its merits.
Whether the suit abated by operation of law
The court found that the suit did not abate, because the Applicants had filed a substitution application within time which was struck out on a procedural technicality, and the delay in refiling was minimal.
Although Order 24 Rule 3(2) imposes a strict one-year deadline and the court initially reasoned that the striking out of the first application meant the suit abated automatically, the court ultimately relied on Said Sweilem Gheithan Saanum, holding that a timely but defective application can be a basis for extension of time. Guided by Article 159(2)(d), the court found the Applicants acted within time initially, the defect was procedural, and the suit did not abate.
Whether the Applicant was entitled to extension of time and substitution
Yes. Extension of time was granted and the deceased 1st Plaintiff was substituted with his executrix.
The court exercised its discretion under Order 50 Rules 6 & 7 and Section 95 of the Civil Procedure Act, applying the principles in Nicholas Kiptoo Arap Korir Salat. The delay between the striking out (22nd October 2024) and the fresh application (7th November 2024) was minimal; the procedural defect was remedied by obtaining the correct consent; and the Defendants demonstrated no prejudice not compensable by costs. Substitution was necessary to progress the post-appeal taking of accounts ordered by the Court of Appeal.
Costs of the application
Costs were left in the cause rather than awarded to any party outright.
The court recited the principle that costs follow the event under Section 27(1) of the Civil Procedure Act, citing Harun Mutwiri, Kenya Union of Commercial Food and Allied Workers and Hussein Muhumed Sirat, but in the circumstances of the application reserved its discretion and ordered costs in the cause.
Legal principles established
#- A consent between outgoing and incoming advocates is a necessary first step but is not sufficient to effect a change of advocates post-judgment; a formal court order is indispensable.
- The defect of failing to first obtain leave to come on record post-judgment can be cured within an omnibus application containing a prayer for leave, in the interests of justice.
- Extension of time is not a right but a judicial discretion exercised to avoid injustice.
Court orders
#- 1.Notice of Motion Application dated 7th November, 2024 found to have merit and allowed with costs to be in the cause
- 2.Leave granted to the firm of Harit Sheth Advocates to come on record for the 1st Plaintiff in place of Bryant & Associates Advocates in compliance with Order 9 Rule 9 of the Civil Procedure Rules; the consent dated 23rd October 2024 adopted as an order of the Court
- 3.Time extended for filing of the substitution application
- 4.The deceased 1st Plaintiff, James Howard Archer, substituted with Linda Hamilton Archer, the executrix of his estate, as the 1st Plaintiff
- 5.Plaintiff to amend and serve the Amended Plaint within 14 days
- 6.Upon service of the Amended Plaint, Defendants granted 21 days leave to comply with Orders 7 and 11 of the Civil Procedure Rules, 2010
- 7.Pre-Trial Conference to be conducted in accordance with Order 11 and further directions before Hon. Justice Olola, ELC No. 3, Mombasa
- 8.Costs of the application to be in the cause
- Jurisdiction invoked
- Sections 3A and 95 of the Civil Procedure Act, Cap. 21; Order 24 Rules 3 and 7, Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Archer & another v Archer & 3 others (Environment and Land Case 345 of 2017) [2026] KEELC 1492 (KLR)", Case Analysis (2026). ELC No. 3 of 2012 (Originating Summons dated 5th December, 2012) - Notice of Motion dated 7th November, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1492/eng@2026-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.