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ELCStruck OutApplication dated 8th October 2025· [2026] KEELC 3271 (KLR)

Mwaruwa v Jembe & another (Environment and Land Case E043 of 2023) [2026] KEELC 3271 (KLR)

Environment and Land Court
20 April 2026
618 words in judgment
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The bottom line

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A Kenyan land court struck out an attempt to revive a dismissed suit because the new lawyer filed papers without first getting the court's permission.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi by Mwangi Njoroge J on a motion dated 8th October 2025 seeking to set aside orders of 29th September 2025 dismissing the plaintiffs' suit for want of prosecution. The applicants explained that the counsel previously handling the matter had joined the Director of Public Prosecutions' office and left private practice without informing them; upon realising the lapse they instructed a new advocate on 28th September 2025, who appeared virtually and sought time to acquaint himself with the file, but the court nonetheless dismissed the suit. The second respondent, through counsel Gabriel Ojwang, opposed, contending the incoming firm was not properly on record, had not disclosed or served the firm it replaced; that the former firm of Mike Atieno and Company comprised two advocates who had both appeared, with no evidence that either had joined the DPP's office; and that a year's delay showed the plaintiffs' disinterest. The court held that the dismissal of the suit created a deemed judgment against the plaintiffs, engaging Order 9 Rule 9 of the Civil Procedure Rules, which requires any new advocate to obtain leave of court before coming on record. Since T.A. Chacha and Associates had not sought such leave, their representation of the applicants violated the rule and the application was incompetent. The court struck out the application with no orders as to costs.

Key legal issues

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01

Whether the new advocates were properly on record

Holding

The firm of T.A. Chacha and Associates was not properly on record; without leave under Order 9 Rule 9 their application was incompetent and was struck out

Reasoning

After dismissal of the suit there is deemed to be a judgment against the plaintiffs, triggering Order 9 Rule 9, which requires a new advocate to apply to court for leave to come on record and represent a party. T.A. Chacha and Associates filed the application without such leave, and their purported representation violated the rule, rendering the motion incompetent.

p. 2
02

Whether the application to set aside dismissal for want of prosecution should be granted

Holding

The court did not reach the merits, striking out the application on the ground of the applicants' incompetent representation

Reasoning

The second respondent opposed, arguing the firm filing was not properly on record, had failed to disclose which firm it replaced, and had not served that firm; also that no evidence showed the former advocate had joined the DPP's office and the year-long delay showed disinterest. The court disposed of the matter on the representation point alone.

p. 2

Legal principles established

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  • Once a suit is dismissed, a deemed judgment exists against the plaintiffs and any new advocate must obtain leave of court before coming on record under Order 9 Rule 9
  • Representation by an advocate who has not obtained leave under Order 9 Rule 9 renders proceedings filed by that advocate a nullity/incompetent

Court orders

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  1. 1.The application dated 8th October 2025 is struck out with no orders as to costs
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court over its own suit; Civil Procedure Rules, Order 9 Rule 9

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, "Mwaruwa v Jembe & another (Environment and Land Case E043 of 2023) [2026] KEELC 3271 (KLR)", Case Analysis (2026). Application dated 8th October 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3271/eng@2026-04-20

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