Kirui v Ngetich & another (Sued in Their Capacity as Legal Representatives of the Estate of Zakayo Kimutai Kotut - Deceased) (Environment and Land Case E003 of 2021) [2026] KEELC 1569 (KLR)
The bottom line
#The Environment and Land Court at Kericho reinstated a dismissed land suit, ruling that a litigant unaware of a dismissal date through their advocate's closure deserves a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether leave should be granted for J.K Kirui & Co. Advocates to come on record
Leave was granted because an order of dismissal for want of prosecution amounts to a final judgment, engaging Order 9 Rule 9.
Order 9 Rule 9 requires a court order or consent for a change of advocate after judgment. Relying on Thomas K. Sambu v Paul Chepkwony, the court held that a dismissal for non-attendance is in the nature of a final judgment. Since the suit had been dismissed for want of prosecution, the incoming firm properly sought leave, and the court saw no reason to decline it.
Whether the dismissal orders of 14th January, 2025 should be set aside and the suit reinstated
The orders were set aside and the suit reinstated; the Applicant attributed non-prosecution to a communication breakdown with former advocates whose offices closed, and the 1st Respondent demonstrated no prejudice.
The court applied the discretionary principles in Ivita v Kyumbu, Shah v Mbogo and Stephen Ndichu, holding that discretion is exercised to avoid injustice or hardship from accident, inadvertence or excusable mistake. The application was filed about four months after dismissal, the Applicant was unaware of the notice to show cause owing to closure of his former advocates' offices, and the 1st Respondent showed no prejudice. Locus standi and the alleged non-existence of the suit parcel were held to be matters for full hearing.
Whether the 1st Respondent's locus standi and 'suit property no longer exists' objections defeat the application
These issues go to the merit of the suit and were deferred to the hearing.
The 1st Respondent argued the Applicant lacked locus, sued on behalf of a deceased person, and that the parcel had been subdivided following the confirmed grant in Kericho HC Succession Cause No. 168 of 2000. The court declined to determine these substantive matters at the interlocutory stage, holding they can be raised and addressed at the hearing of the reinstated suit.
Legal principles established
#- An order of dismissal for want of attendance/non-attendance is in the nature of a final judgment, hence leave under Order 9 Rule 9 is required for a new advocate to come on record.
- Setting aside an order dismissing a suit for want of prosecution is a discretionary, equitable remedy requiring demonstration of sufficient cause, exercisable to avoid hardship from accident, inadvertence or excusable mistake.
Court orders
#- 1.The firm of J.K Kirui & Co. Advocates is granted leave to come on record for the Applicant
- 2.The orders issued on 14th January, 2025 dismissing the Applicant's suit for want of prosecution are set aside
- 3.The Applicant's suit is reinstated for hearing
- 4.Costs of the application shall be in the cause
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act, Order 12 Rules 1 & 7 and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirui v Ngetich & another (Sued in Their Capacity as Legal Representatives of the Estate of Zakayo Kimutai Kotut - Deceased) (Environment and Land Case E003 of 2021) [2026] KEELC 1569 (KLR)", Case Analysis (2026). Originating Summons dated 3rd March, 2021 (Notice of Motion dated 20th May, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1569/eng@2026-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.