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ELCStruck Out· [2026] KEELC 2573 (KLR)

Kairo & 2 others (Suing as the administrators of the Estate of Simon Thuo Kairo - Deceased) v Aberdare Estates Limited (Enviromental and Land Originating Summons 6 of 2024) (Environment and Land) [2026] KEELC 2573 (KLR)

Environment and Land Court
30 April 2026
4,122 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out landowners' attempt to revive a dismissed suit because they changed lawyers without first getting the court's permission.

What this practically means

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Executive summary

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The Plaintiffs' undated Notice of Motion, brought under Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Articles 50(1) and 159(2) of the Constitution, sought the setting aside of orders dated 14th July 2025 dismissing their suit for want of prosecution, so the suit could be reinstated for hearing on the merits. The Plaintiffs explained that changes in their legal representation had left them unaware of the hearing date. The Defendant opposed via Grounds of Opposition and submissions, arguing that the Plaintiffs had already secured one reinstatement, were indolent, and had filed the application unprocedurally without a Notice of intention to act in person. The court first determined whether the Plaintiffs were properly on record. Applying Njue Ngai v Ephantus Njiru Ngai and Peter Ngome v Plantex, it held that a dismissal for want of prosecution amounts to a judgment, thereby triggering Order 9 Rule 9, which requires leave of the court or a consent before a change of advocates or a party acting in person after judgment. Since the Plaintiffs neither sought leave nor filed the required notice, the application offended Order 9 Rule 9. Relying on S.K. Tarwadi, Lalji Bhimji Shangani Builders, Monica Moraa and Mwangi v Ndungi, the court held the procedure mandatory, not a mere technicality, and that a new advocate could not inherit an application unprocedurally on the record. The court struck out all pleadings filed by the Plaintiffs acting in person, struck out the undated Notice of Motion, and awarded costs to the Respondent. The suit was not reinstated and the dismissal of 14th July 2025 was left undisturbed.

Key legal issues

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01

Whether a dismissal for want of prosecution is a judgment triggering Order 9 Rule 9

Holding

Yes - the dismissal of the suit for want of prosecution culminated in a judgment, so the Plaintiffs had to obtain leave before changing advocates or acting in person

Reasoning

The court adopted the reasoning in Njue Ngai v Ephantus Njiru Ngai, which endorsed Peter Ngome v Plantex Company Limited, holding that a dismissal of a suit is a judicial determination on the main question in the proceeding and thus a judgment. Consequently Order 9 Rule 9 became applicable, requiring leave of the court or consent before a party could act in person or change advocates after the dismissal.

p. 7
02

Whether failure to comply with Order 9 Rule 9 rendered the application a nullity

Holding

Yes - the application was filed without leave and was unprocedurally on the record; the pleadings filed by the Plaintiffs acting in person were struck out

Reasoning

The court relied on S.K. Tarwadi v Veronica Muehlmann and Mwangi v Ndungi, holding that leave under Order 9 Rule 9 is a pre-condition to filing the substantive application and cannot operate retrospectively to validate a filing made without it. The new advocates could not inherit the defective application, and subsequent representation by M/S Karuga & Co. Advocates did not cure the defect.

p. 8

Legal principles established

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  • A dismissal of a suit for want of prosecution amounts to a judgment for purposes of Order 9 Rule 9 of the Civil Procedure Rules
  • The procedure under Order 9 Rule 9 for change of advocates or acting in person after judgment is mandatory and not a mere technicality
  • An application filed without the requisite leave under Order 9 Rule 9 is a nullity and a new advocate cannot inherit it

Court orders

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  1. 1.All pleadings filed by the Plaintiffs acting in person are struck out
  2. 2.The undated Notice of Motion filed by the Plaintiffs is struck out with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 51 Rule 10(2)
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 12 Rule 3
  • Civil Procedure RulesOrder 9
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of Kenya 2010Article 50(1)
  • Constitution of Kenya 2010Article 159(2)

Cases cited (14)

  • Kimani v Mbogo & another
    (Civil Application E369 of 2021) [2022] KECA 147 (KLR)
  • Joswa Kenyatta v Civicon Limited
    [2020] eKLR
  • Shah v Mbogo & Another
    [1967] EA 116
  • The Registered Trustees of the Archdiocese of Dar es Salaam v. The Chairman Bunju Village Government & others
    Civil Appeal No. 147 of 2006
  • Wachira Karani v. Bildad Wachira
    [2016] eKLR
  • Richard Nchapi Leiyagu v IEBC & 2 others
    [2013] eKLR
  • Philip Chemowolo & Another v Augustine Kubede
    [1982-88] KAR 103
  • Wafula –vs- Wepukhulu & 5 others
    Bungoma Civil Suit No. 55 of 2010
  • Njue Ngai v Ephantus Njiru Ngai & another
    [2016] KECA 805 (KLR)
  • Peter Ngome vs Plantex Company Limited
    [1983] eKLR
  • S. K. Tarwadi vs Veronica Muehlmann
    [2019] eKLR
  • Lalji Bhimji Shangani Builders & Contractors –vs- City Council of Nairobi
    [2012] eKLR
  • Monica Moraa –vs- Kenindia Assurance Co. Ltd.
    [2010] eKLR
  • Mwangi v Ndungi & another; Wambui & 2 others (Interested Parties)
    (Cause 240 of 2017) [2022] KEELC 15576 (KLR)
Jurisdiction invoked
Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Articles 50(1) and 159(2) of the Constitution of Kenya 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, "Kairo & 2 others (Suing as the administrators of the Estate of Simon Thuo Kairo - Deceased) v Aberdare Estates Limited (Enviromental and Land Originating Summons 6 of 2024)  (Environment and Land) [2026] KEELC 2573 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2573/eng@2026-04-30

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