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ELCPartially AllowedELC LOM No. E001 of 2025· [2026] KEELC 5278 (KLR)

Githire v George & 11 others (Environment and Land Originating Motion E001 of 2025) [2026] KEELC 5278 (KLR)

Environment and Land Court
12 August 2026
CMC. G. Mbogo
3,097 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court reinstated a dismissed land case, but ruled an advocate without a current practising certificate cannot be paid for his work or keep filing documents.

What this practically means

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Executive summary

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The plaintiff/applicant moved the Environment and Land Court by notice of motion dated 30th January 2026 seeking to set aside the court's order of 20th January 2026 dismissing his application (dated 31st December 2024, amended 19th August 2025) for want of prosecution, and to reinstate it for hearing and final determination. The applicant explained that the mention clashed with funeral arrangements for the 3rd defendant, his deceased brother, and that counsel holding brief had limited instructions. The 2nd, 7th, 8th and 9th defendants opposed via grounds of opposition, contending that the applicant had changed advocates the day before the mention, that Ms. Muthoni appeared for him, that he withdrew instructions that morning, and that the dismissal was justified. The 4th and 9th defendants filed replying affidavits asserting the change of advocates was tactical, that the 4th defendant bore primary funeral responsibilities, and that the applicant lacked capacity as he was not a legal representative of the estate of Eliud Ngichu Githire. Framing the issue as whether the dismissed application should be reinstated, the court reviewed the record, found the mention was only to confirm compliance with filing of responses in an application to be canvassed by written submissions, and held the diligent applicant could be reinstated in the interest of justice. The court also noted that the applicant's advocate, Kelvin Mugambi Mugwuku, was inactive for 2026; applying Section 34 of the Advocates Act as interpreted by the Supreme Court in National Bank of Kenya Ltd v Anaj Warehousing Ltd, it denied him remuneration and barred further filings until regularization. Timetabling directions were issued and no costs ordered.

Key legal issues

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01

Whether the dismissal of the applicant's application for want of prosecution on 20th January 2026 should be set aside and the application reinstated

Holding

Yes. The mention was only to confirm compliance with filing of responses, the application was to be canvassed by written submissions, and the applicant had been diligent; reinstatement was granted in the interest of justice.

Reasoning

The court reviewed the record and found that the 20th January 2026 mention was to confirm compliance with filing of responses and fix a date for ruling, not a full inter-partes hearing. Ms. Muthoni held brief but withdrew because instructions were withdrawn minutes before. The court found inadvertence by the applicant in instructing his counsel but held that, given his diligence and desire to prosecute, reinstatement served the interest of justice.

p. 13
02

The effect of the applicant's advocate being inactive for 2026 and not holding a current practising certificate

Holding

The filing is not invalidated, but the advocate is denied remuneration for documents prepared while inactive and barred from filing further documents until he regularizes his status.

Reasoning

Relying on Section 34 of the Advocates Act and the Supreme Court decision in National Bank of Kenya Ltd v Anaj Warehousing Ltd, the court held that documents prepared by an advocate without a current practising certificate are not thereby invalid, but the advocate remains subject to civil, criminal and disciplinary liability and cannot recover fees for such work. The court directed accordingly and restricted further filings.

p. 15

Legal principles established

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  • A document filed by an advocate not holding a current practising certificate is not invalidated merely by that fact, per the Supreme Court in National Bank of Kenya Ltd v Anaj Warehousing Ltd
  • Section 34 of the Advocates Act bars unqualified persons from taking instructions or preparing documents relating to legal proceedings and from receiving fees for such work
  • A diligent litigant desirous of prosecuting an application may be granted reinstatement of an application dismissed for want of prosecution in the interest of justice

Court orders

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  1. 1.Defendants/Respondents to file and serve their responses within seven (7) days from the date of the ruling
  2. 2.Plaintiff/Applicant to file and serve a supplementary affidavit, if need be, together with submissions within seven (7) days after service
  3. 3.Defendants/Respondents to file and serve further affidavits, if need be, together with submissions within seven (7) days after service
  4. 4.Mention on 4th November, 2026 to take a date for ruling
  5. 5.No orders as to costs
  6. 6.Kelvin Mugambi Mugwuku is not entitled to remuneration in respect of documents prepared while not holding a current practising certificate
  7. 7.Kelvin Mugambi Mugwuku barred from filing any further documents in this matter until he regularizes his inactive status
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 12 rule 7 and 51 of the Civil Procedure Rules

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, "Githire v George & 11 others (Environment and Land Originating Motion E001 of 2025) [2026] KEELC 5278 (KLR)", Case Analysis (2026). ELC LOM No. E001 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5278/eng@2026-08-12

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