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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether leave to change legal representation can be granted after a suit has been struck out
Yes - Order 9 rule 9 does not require the suit to be reinstated first before leave to come on record is granted.
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.
Whether the preliminary objection on limitation was res judicata
Yes - the court had already made a finding on limitation in the 20.2.2015 ruling.
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.
Effect of post-striking-out proceedings
Until the striking-out orders are reviewed, varied or set aside, anything done by the parties post the striking out remains a nullity.
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.
Legal principles established
#- 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
#- 1.Leave granted to the firm of J.T Makori and Company Advocates to come on record for the applicant
- 2.Costs to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.