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ELCAllowedELC Case No. 491 of 2014· [2026] KEELC 5109 (KLR)

Ole Kantai (Sung as the Legal Representative of he Estate of the Late Benson Katela ole Kentai) v Mutevu & 3 others (Environment and Land Case 491 of 2014) [2026] KEELC 5109 (KLR)

Environment and Land Court
22 July 2026
1,570 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you can change lawyers after your case is struck out, but until the striking-out order is set aside, the case effectively remains dead.

What this practically means

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Executive summary

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By a notice of motion dated 7.11.2024, the firm of James T Makori Advocates sought leave to come on record for the plaintiff in place of the former law firm, stating an intention to later apply to reopen the suit for full hearing. The application was opposed by preliminary objections: the 1st defendant argued the court became functus officio after its ruling of 20.2.2015 striking out the suit as time-barred, while the 2nd defendant argued the suit was time-barred under sections 4(1)(a) and 7 of the Limitation of Actions Act and offended the doctrine of laches, relying on Ivita vs Kyumbu. The court held that the limitation objection was res judicata, having been determined in the 2015 ruling. On the merits, the court interpreted Order 9 rule 9 of the Civil Procedure Rules to mean that dismissal or striking out of a suit does not bar a losing party from seeking leave to change legal representation, and that the order does not require reinstatement of the suit first. The court acknowledged, citing Macfoy vs United Africa Company, that until the striking-out orders are reviewed, varied or set aside, anything done by the parties post-striking-out remains a nullity. Nonetheless, it found the application merited, granted leave to J.T Makori and Company Advocates to come on record, awarded costs to the respondent, and marked the file as closed.

Key legal issues

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01

Whether leave to change legal representation can be granted after a suit has been struck out

Holding

Yes - Order 9 rule 9 does not require the suit to be reinstated first before leave to come on record is granted.

Reasoning

The court interpreted Order 9 rule 9 as not conditioned on reinstatement of the suit. A party who has lost a suit is not barred in law from approaching the court for leave to change representation post-dismissal. The court therefore found the application merited despite the defendants' objections on functus officio and limitation.

p. 8
02

Whether the preliminary objection on limitation was res judicata

Holding

Yes - the court had already made a finding on limitation in the 20.2.2015 ruling.

Reasoning

The 2nd defendant's preliminary objection that the suit was time-barred was held to be res judicata because the court had already determined the limitation issue in the ruling of 20.2.2015 striking out the suit.

p. 9
03

Effect of post-striking-out proceedings

Holding

Until the striking-out orders are reviewed, varied or set aside, anything done by the parties post the striking out remains a nullity.

Reasoning

Applying the principle from Macfoy v United Africa Company, the court held that subsequent proceedings could not validate a non-existent suit; acts done on a non-existent suit amount to nullities. This answered the applicant's argument that subsequent proceedings rendered the preliminary objections factually incorrect.

p. 9

Legal principles established

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  • Dismissal or striking out of a suit does not bar an applicant who has lost a suit from seeking leave for change of legal representation under Order 9 rule 9; the suit need not first be reinstated.

Court orders

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  1. 1.Leave granted to the firm of J.T Makori and Company Advocates to come on record for the applicant
  2. 2.Costs to the respondent
  3. 3.The file is marked as closed
Jurisdiction invoked
Order 9 rule 9 of the Civil Procedure Rules; the court's statutory and constitutional jurisdiction

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, "Ole Kantai (Sung as the Legal Representative of he Estate of the Late Benson Katela ole Kentai) v Mutevu & 3 others (Environment and Land Case 491 of 2014) [2026] KEELC 5109 (KLR)", Case Analysis (2026). ELC Case No. 491 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5109/eng@2026-07-22

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