Georgopoulou (Formerly Stavroula Rousalis) v Denancy Investments Ltd & 8 others (Environment and Land Case 86 of 2019) [2026] KEELC 4303 (KLR) (13 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELC CASE NO. 86 OF 2019** **STAVROULA GEORGOPOULOU** **(FORMERLY STAVROULA ROUSALIS) ………………………..PLAINTIFF** **-VERSUS-** **1. DENANCY INVESTMENTS LIMITED …………………..1ST DEFENDANT** **2. DAVID RONALD NGALA ADHOCH ……………………2ND DEFENDANT** **3. LABH SINGH HARMAN SINGH LIMITED ………….....3RD DEFENDANT** **4. THE CHIEF LAND REGISTRAR ………………………...4TH DEFENDANT** **5. THE ATTORNEY GENERAL ……………………………5TH DEFENDANT** **6. SILVER BRIDGE INVESTMENTS LIMITED …………..6TH DEFENDANT** **7. REAL ENERGY LIMITED ………………………………..7TH DEFENDANT** **8. HOKING (KENYA) REAL ESTATE CO. LIMITED ........8TH DEFENDANT** **9. THE NATIONAL LAND COMMISSION ……………..….9TH DEFENDANT** **RULING** 1. The 1st Defendant/Applicant filed the Notice of Motion dated 17th December, 2025 under the provisions of Articles 25(c), 48 and 50 of the Constitution, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Order 9 Rule 9 and 10, Order 10 Rule 11 and Order 51 of the Civil Procedure Rules. 2. The following orders were sought: - 3. **[*SPENT*]** 4. **THAT the firm of Nyamwaro & Company Advocates be granted leave to come on record for the 1st Defendant/Applicant in place of Rene & Hans Advocates LLP pursuant to Order 9 Rules 9 and 10 of the Civil Procedure Rules.** 5. **[*SPENT*]** 6. **THAT the Honourable Court be pleased to set aside the judgment of the Honourable T. Murigi delivered on the 7th day of May, 2025.** 7. **THAT the Honourable Court be pleased to order that the suit be heard afresh on its merits.** 8. **THAT costs of this application be provided for.** 9. The application is premised on the grounds appearing on its face together with the supporting affidavit of Abdirashid Abdul Sharifow sworn on even date. The deponent averred that he is the Director of the 1st Defendant and that in a judgment delivered on the 7th day of May 2025 by Lady Justice T. Murigi, the Court deprived the 1st Defendant of the property known as LR No. 12715/595 registered in its name. 10. He further averred that upon being served with the Plaint, the 1st Defendant together with the 2nd Defendant instructed the firm of Gitau Gikonyo & Co. Advocates who came on record on their behalf and filed a joint statement of defence dated 22nd March, 2016. The deponent added that the 1st Defendant proceeded to instruct the firm of Otwal & Manwa Associates to come on record in the year 2019 and thereafter the firm of Rene & Hans Advocates. That the latter law firm pursued an appeal out of time against the ruling of this court delivered on 9th February 2021 vide Nairobi Civil Application No. E007 of 2022. 11. The deponent averred that in reliance of representation that was made to the 1st Defendant by the firm of Rene & Hans Advocates that the Court of Appeal had granted an order of stay of the present proceedings pending the hearing of the application before the same court. That despite the representation made by the said law firm, the 1st Defendant was surprised to learn that this court had proceeded to hear and determine the matter in the absence of the 1st and 8th Defendants. 12. The deponent contended that on 22nd November 2022, the law firm of Rene & Hans Advocates was denied audience by this court for failing to file a Notice of Change of Advocates from the firm of Otwal & Manwa Associates. However, the said firm did not inform the 1st Defendant of court directions for hearing of the matter ex-parte nor did they move this court to set aside the proceedings of 22nd November, 2022. 13. The deponent contended that it would be unfair to evict the 1st Defendant from the suit property, a place it has called home for the past twenty years for the mistakes and omissions of Rene & Hans Advocates LLP. 14. The deponent contended that it is in the interest of justice that the 1st Defendant be granted an opportunity to be heard and to cross-examine the Plaintiff. He urged the court to allow the application as prayed. 15. The Plaintiff filed an affidavit in reply which was sworn on her behalf by Kishore Nanji Advocate on 27th January, 2026. He averred that prayer number two of the present application is misconceived in view of the fact that Rene & Hans Advocates LLP have never been on record for the 1st Defendant because the last advocates on record were Otwal & Manwa Associates. 16. The deponent refuted the averment that the 1st Defendant was unaware of the proceedings of 22nd November 2022 before this court. He contended that the 1st Defendant averred in its affidavit sworn on 28th November, 2022 in support of the application before the Court of Appeal in Civil Appeal (Application) No. E007 of 2022 that this court had denied the 1st Defendant an opportunity to instruct new counsel and closed the 1st Defendant’s case suo moto. It was further contended that the 1st Defendant was given all the right to be heard but failed to take such opportunity. 17. The 1st Defendant filed a further affidavit sworn by its Director Abdirashid Abdul Sharifow on 2nd June, 2026. He reiterated his averment that the 1st Defendant was never aware of the hearing date of 22nd November, 2022 having relied entirely on the representations of Rene & Hans Advocates LLP on all material developments on the status of the matter. That the 1st Defendant only became aware of the ex-parte proceedings of 22nd November, 2022 and the subsequent judgment of 7th May, 2025 after instructing the firm of Nyamwaro & Co. Advocates in November 2025 to peruse the court file. 18. The application was canvassed by way of written submissions. 19. In the 1st Defendant/Applicant’s submissions dated 2nd June, 2026, Counsel argued that the Plaintiff’s affidavit in reply sworn by her advocate is defective as it is not confined to matters within the personal knowledge of the deponent in violation of the provisions of Order 19 Rule 3 of the Civil Procedure Rules. 20. Counsel further submitted that Order 12 Rule 7 of the Civil Procedure Rules vests in this court wide discretion to set aside a judgment entered in the absence of a party upon such terms as may be just. Counsel submitted that the 1st Defendant had provided a reasonable explanation for its absence and that a it had also demonstrated that it has an arguable defence. Counsel urged the court to allow the application with costs. 21. The Plaintiff filed her submissions dated 6th July, 2026. On her behalf, Counsel submitted that the 1st Defendant does not make reference to any paragraphs of the replying affidavit which it considers unsustainable to be sworn by the Plaintiff’s advocate. In support of this submission, Counsel relied on the case of **Kamlesh M. A. Pattni -vs- Nassir Ibrahim Ali & 2 others CA 354/2004**. 22. Counsel reiterated that the 1st Defendant was given all the opportunity to exercise its right to a fair hearing under Article 50 of the Constitution, but failed to do so. Counsel urged the court to dismiss the application with costs. 23. Having considered the application, the affidavit in reply and the rival submissions, three issues for determination arise: - 24. ***Whether leave ought to be granted to the firm of Nyamwaro & Company Advocates to come on record for the 1st Defendant;*** 25. ***Whether the Plaintiff’s replying affidavit is defective; and*** 26. ***Whether the Applicant has met the threshold for setting aside of the judgment delivered on 7th May, 2025.*** 27. The governing law relating to a change of advocates when a judgment and decree have been issued is set out under Order 9 Rule 9 of the Civil Procedure Rules, 2010. It provides as follows: - **When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—** * 1. **Upon an application with notice to all the parties; or** 2. **Upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.** 1. The record shows that the law firm of Otwal & Manwa Associates Advocates are on record for the 1st Defendant. The law firm of Rene & Hans Advocates LLP has never been on record for the 1st Defendant. The Applicant reaffirms that the law firm of Rene & Hans Advocates LLP did not properly come on record for the 1st Defendant under paragraph 10 of its further affidavit, when it made a request for adjournment of the matter on 22nd November, 2022 and the same was disallowed by the court. 2. There being no notice of change of advocates in the record, the application for a change of advocates in accordance with the provisions of Order 9 Rule 9 (a) of the Civil Procedure Rules is invalid. This court cannot issue an order improperly allowing the firm of Nyamwaro & Company Advocates to come on record in place of a law that had not been duly appointed to act for the 1st Defendant. Such action would be null and void. 3. In respect of the first issue, the prayer for leave to come on record for the 1st Defendant by the firm of Nyamwaro & Company Advocates is hereby disallowed. 4. In respect of the second issue, it was contended by the 1st Defendant that the Plaintiff’s affidavit in reply is fatally defective in view of the fact that the affidavit was sworn by Kishore Nanji, the Plaintiff’s advocates on contested matters of fact. 5. In the case of **Kamlesh Mansukhlal Damji Pattni v Nasir Ibrahim Ali & 2 others [2005] eKLR**, the Court of Appeal aptly observed as follows: - ***“There is otherwise no express prohibition against an advocate who of his own knowledge can prove some facts, to state them in an affidavit on behalf of his client. So too an advocate who cannot readily find his client but has information the sources of which he can disclose and state the grounds for believing the information. On both counts we do not find Muite’s remaining affidavit offensive. As we stated earlier he is possessed of the facts stated therein and secondly he has explained, and we believe him in the circumstances of this case, that his clients were not readily available.”*** 1. A thorough perusal of the affidavit in reply sworn by the Plaintiff’s advocate reveals that the averments therein are in respect of the chronology of events in the current proceedings and the proceedings before the Court of Appeal in Nairobi Civil Appeal (Application) No. E007 of 2022 by virtue of his participation therein. The Applicant did not point out the specific averments which are offensive or which prejudice the 1st Defendant’s case as to become contentious. The Applicant did not allude to the specific paragraphs that wade into matters outside the knowledge of the Plaintiff’s advocate. 2. In view of the foregoing, this court declines to find the Plaintiff’s affidavit in reply as defective to warrant striking out. 3. Onto the last issue, this court has the discretion to set aside an ex-parte judgment or order in accordance with the provisions of Order 12 Rule 7 of the Civil Procedure Rules which outlines as follows: - **‘Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.’** 1. Again, under Order 51 Rule 15 of the Civil Procedure Rules, the law sets out as follows: - **‘The court may set aside an order made ex parte.’** 1. Being a discretionary power, the Court of Appeal observed as follows in **CMC Holdings Ltd v James Mumo Nzioki [2004] eKLR** with regard to the setting aside of *ex-parte* orders: - ***“Our view is that in law, the discretion that a court of law has, in deciding whether or not to set aside ex parte order such as before us was meant to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. It would in our mind not be a proper use of such a discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would in our mind be wrong in principle.”*** 1. The overriding objective under the Civil Procedure Act is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. The discretion of this Court under Section 3A of the Act binds this Court to promote the ends of justice in civil litigation. 2. After a perusal of the record, it is evident that the 1st Defendant was served with a hearing notice on 11th November, 2022 through its advocates on record Otwal & Manwa Associates. An affidavit of service was filed on 17th November, 2022 by the Plaintiff’s advocates. 3. No evidence was adduced by the 1st Defendant to demonstrate that the firm of Otwal & Manwa Associates was denied audience on 22nd November, 2022 having been duly appointed representatives of the 1st Defendant. The Applicant did not adduce any Notice of Change of Advocates demonstrating that any other law firm was appointed to act on its behalf. 4. That aside, whereas the firm of Rene & Hans LLP Advocates appeared in court on 22nd November, 2022 seeking an adjournment, six days later on 28th November, 2022 they made an application to the Court of Appeal in Nairobi Civil Appeal (Application) No. E007 of 2022 seeking a stay of the proceedings that were pending before this court. 5. At paragraph six of the supporting affidavit sworn by Abdirashid Abdul Sharifow on 28th November, 2022, he averred as follows: - ***“THAT I am advised by my Advocates on record, which advice I verily believe to be true and correct, that despite the pendency of this appeal, which fact was brought to the attention of the court (Makueni ELC), the ELC nonetheless proceeded with the hearing of the main suit on 22nd November, 2022, heard the Plaintiff’s case to completion, denied the Defendants’ an opportunity to instruct new counsel, closed the Defendants’ case suo moto and proceeded to fix the matter for mention to fix a judgment date on 6th February, 2023.”*** 1. The Applicant herein duly signed the above affidavit through its Director and filed the same in the Court of Appeal. It then beats logic for the 1st Defendant to declare that it only became aware of the proceedings of November 2022 and the subsequent judgment of 7th May, 2025 after instructing Nyamwaro & Company Advocates to peruse the court file in November, 2025. 2. The deceit from the Applicant is clear as day. It had all the opportunity to properly move the court to set aside the proceedings of 22nd November, 2022 and regularize its representation as soon as its representatives left court on the same day. It is therefore indisputable that the present application to set aside proceedings and judgment has been made as an afterthought and is unquestionably meant to derail the execution of decree by the Plaintiff and cause further hardship. 3. The present application was made on 17th December, 2025. The Applicant was aware of the proceedings of 22nd November, 2022 and even swore on oath before the Advocates representing it before the court of Appeal that it had allegedly been denied audience by this court. The explanation provided that the no communication was relayed to the 1st Defendant is unsatisfactory. In **Shah v Mbogo [1967] EA 116** at 123B Harris J, judiciously held as follows:- ***“This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.”*** 1. Similarly, in **Patel v EA Cargo Handling Services Ltd [1974] 1 EA 75 (CAM)** the Court of Appeal aptly held thus: - “***The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules.”*** 1. Judicial decisions abound on the need for litigants to stay abreast with their suits in order to avert unnecessary delay or indolence on their part. In the case of **Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR,** the Court of Appeal aptly held as follows: - ***“Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.”*** 1. In the case of **Savings and Loans Limited vs Susan Wanjiru Muritu Nairobi HCCC 397/2002**, the court observed as follows: - ***“Whereas it would constitute a valid excuse for the defendant to claim that she had been let down by her former advocates failure to attend court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend court. It is the duty of the litigant to constantly check the progress of her case.”*** 1. The upshot is that the application dated 17th December, 2025 is totally devoid of merit. Accordingly, it is dismissed with costs to the Plaintiff. It is so ordered. **................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 13TH DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Ms. Mulongo for Mr. Nanji for Plaintiff/Respondent. Mr. Nyamwaro for 1st Defendant/Applicant. Court assistants – Kilonzo and Musyoki