https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5278

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCLOM NO. E001 OF 2025** **ARTHUR NDURU GITHIRE ...........................................PLAINTIFF/APPLICANT** **VERSUS** **FRANCIS GEORGE.............................................1ST DEFENDANT/RESPONDENT** **GEORGE GITHIRE NGICHU..............................2ND DEFENDANT/RESPONDENT** **DAVID MARIGI GITHIRE..................................3RD DEFENDANT/RESPONDENT** **RUTH WANJA OTSYULA...................................4TH DEFENDANT/RESPONDENT** **REBECCA NJOROGE.........................................5TH DEFENDANT/RESPONDENT** **BEATRICE WAMAITHA.....................................6TH DEFENDANT/RESPONDENT** **ROSELINE NJERU WAWERU............................7TH DEFENDANT/RESPONDENT** **EUNICE WANJIRU GITHIRE............................8TH DEFENDANT/RESPONDENT** **LUCY MUTHONI GITHIRE................................9TH DEFENDANT/RESPONDENT** **JAMES NJOROGE............................................10TH DEFENDANT/RESPONDENT** **THE CHIEF LAND REGISTRAR……................…11TH DEFENDANT/RESPONDENT** **THE HON. ATTORNEY.....................................12TH DEFENDANT/RESPONDENT** **RULING** 1. The plaintiff/applicant filed the notice of motion dated 30th January, 2026 expressed to be brought under **Sections 1A, 1B** and **3A** of the **Civil Procedure Act**, **Orders 12 rule 7** and **Order 51** of the **Civil Procedure Rules**, seeking the following orders: 2. ***Spent.*** 3. ***This honorable court be pleased to set aside its*** ***orders made on 20th January, 2026 dismissing the plaintiff’s application dated*** ***8/19/2025 and all other consequential orders thereto, pending the hearing and determination of this application.*** 4. ***This honorable court be pleased to reinstate the plaintiff’s application dated*** ***8/19/2025 and the same be set down for hearing and final determination.*** 5. ***Costs of this application be in the cause.*** 6. The application is premised on the grounds on its face. It is further supported by the undated affidavit of the plaintiff/applicant who deposed that he instructed the firm of Mugambi Mugwuku Advocates to file a notice of motion dated 31st December, 2024 against the defendants/respondents in which he obtained among other, an order maintaining the status quo currently obtaining on the suit property as pertains to the current occupation, possession and use thereof. 1. The plaintiff/applicant deposed that the application was then set down for inter-partes hearing on 4th February, 2025. However, before the application could be heard, the defendants/respondents lodged a notice of preliminary objection challenging the application on the grounds that this court lacked jurisdiction to hear and entertain the suit, and that the matter was res judicata. This caused the hearing of the application dated 31st December, 2024 to be arrested to allow first the hearing and determination of the preliminary objection which was determined in a ruling delivered on 14th day August, 2025. Following the ruling, he sought to amend his application vide the amendment dated 19th August, 2025, and the 1st to 10th defendants/ respondents sought for time to file their response and were granted 7 days to do so. The matter was then fixed for mention to confirm filing of the response by the defendants/respondents on 11th November 2025. 2. The plaintiff/applicant deposed that when the matter came up for mention, the 1st to10th defendants/respondent informed the court that they had filed their respective notice of change of advocates, and therefore needed time to file their respective responses to the application dated 19th August, 2025. They also requested the court to allow them to expunge all their documents and/or replies that had been filed by their previous advocate, which they were allowed to do and the matter was fixed for mention on 20th January 2026. 3. He deposed that in an unfortunate turn of events, on 11th January 2025, 9 days before the matter came up for mention, the 3rd defendant/respondent who is his brother passed on, and was set to be buried on 22nd January 2026, just 2 days after the mention. Thereafter, on 20th January 2026, the matter came up for mention to confirm whether the defendants/respondents had filed their responses. However, on that material day, the plaintiff/applicant and his advocate on record, Mr. Mugambi Mugwuku visited chiromo funeral home following up on the burial arrangements of the 3rd defendant/respondent. Since they were unable to attend court at the time, they sent another counsel to hold brief. 4. The plaintiff/ applicant deposed that the defendants/respondents mischievously and in bad faith, took advantage of the situation and lied to the court that he had failed to prosecute his application which led to the dismissal of the same. On the other hand, he accused the defendants/respondents of having on several occasions caused the delay in hearing of his application by asking for adjournment and time to file their responses which they have failed to do. The plaintiff/applicant contends that is clear even from the court record and case activities that he has always complied with all directions and orders and has made all reasonable attempts to prosecute his case without unreasonable delay and his advocate on record has also never failed to attend court save on 20th January, 2026. 5. Further, that the 1st to 10th defendants/respondent and their advocates on record failed to disclose that the purpose of the mention on 20th January, 2026 was to confirm whether they had complied with filing of their responses and to fix his application for hearing. Noting the fact that the advocate sent to hold brief on his behalf on that single day had limited instructions, he pleaded that the same should not be taken to his prejudice. 1. The 2nd, 7th, 8th and 9th defendants/respondents filed grounds of opposition dated 24th February 2026, opposing the instant application, on the following grounds, in summary, that on the 19th of January 2026, the plaintiff/applicant filed a notice of change of advocates and retained the firm of M/s Nguruiya Gitau & Co. Advocates in place of the firm of Kelvin M. Mugwuku & Co. Advocates. That when this matter came up for directions on 20th January 2026, (a day after the notice was filed) a Ms. Muthoni held brief for Mr. Nguruiya for the plaintiff/applicant. They stated that the 3rd defendant, who was deceased at the time was buried on the 22nd January 2026, and that the plaintiff/applicant has not presented before this court any material and substantive evidence as to what would warrant his advocate, Mr. Mugwuku to abscond attendance on the said date while he is not in any way directly related to the family neither has he demonstrated that counsel was allocated any responsibility to and for the burial arrangements. 1. The 2nd, 7th, 8th and 9th defendants/respondents deposed that on the said 20th January 2026, this court dismissed the application dated 31st December, 2024 and amended on 8th October, 2025 for want of prosecution on the basis that the plaintiff/applicant knew of the date of attendance, and that on the morning of the proceedings, he withdrew instructions from his new advocates and failed to call another advocate. It is contended that the matter was set down for pre-trial conference in the presence of Ms. Muthoni, the plaintiff/applicant’s new counsel, while no application to cease acting was filed either formally or orally made by said counsel. Thus, by virtue of these facts, the plaintiff/applicant was aware that this matter was coming up for pre-trial conference on 24th February, 2026 since he still had counsel on record. 2. Their opposition to this application is that the plaintiff/applicant’s actions amount to a delay in delivery of justice, a misrepresentation of material facts and an abuse of court process. 3. The 4th defendant/respondent filed the replying affidavit sworn on 6th February, 2026. She deposed that the instant application is unsubstantiated and a blatant attempt to mislead this court with the intention to delay justice. She confirmed that indeed all parties were directed to file all their bundle of documents regarding the proceedings and return to court on 20th January, 2026. On the said date, counsel for the plaintiff/applicant from Ngaruiya Gitau and Company Advocates was present, and served her lawyer with a notice of change of advocates dated 19th January, 2026 which is proof that they had adequate instructions to represent the plaintiff/applicant, but they were not ready to prosecute the matter hence it’s dismissal for want of prosecution. 4. The 4th defendant/respondent deposed that the purported appointment of new counsel on 19th of January, 2026, is a transparent and tactical ploy by the plaintiff/ applicant to obstruct the timely administration of justice and it was not a case of ‘holding brief’ or a misunderstanding; that it was a premeditated attempt to waste this court’s time. She deposed that all parties to this suit were equally bereaved by the passing of the 3rd defendant and despite this shared loss, the defendants/respondents’ counsel remained diligent and appeared in court to protect their clients’ interests. 5. Further, that whereas the plaintiff/applicant seeks to use a collective tragedy as a convenient shield for his own procedural negligence, she was the primary coordinator of the funeral committee, tasked with the settlement of hospital invoices, liaising with the mortuary, and overseeing all logistical burial arrangements. She deposed that the plaintiff/applicant maintained no functional role in these processes, rendering his presence non-essential to the proceedings of the day. Further, that his advocate had no involvement whatsoever in the 3rd defendant’s final rites. The 4th defendant/respondent position is that it is in the best interest of all the parties in this suit that the main suit be heard and dispensed with in *toto* to save on time and resources. 6. The 9th defendant/respondent also filed the replying affidavit sworn on 12th January, 2026. She deposed that that all litigants herein apart from the 11th and 12th defendants/respondents are siblings, and that the properties cited herein being LR No. 239/7 (original No.239/412), LR No 239/2/3/l and LR No. 14316 make up the estate of their late father Eliud Ngichu Githire (deceased). She deposed that the plaintiff/applicant is not a legal representative to the estate of their deceased father, by dint of the grant of probate and certificate of confirmation of grant, hence he would not have the legal capacity to bring a suit for and on behalf of his estate. She deposed that in seeking a resurvey, the plaintiff/applicant has wrongfully invoked the jurisdiction of this court. 7. The plaintiff/applicant filed his supplementary affidavit sworn on 13th February, 2026. While reiterating the contents of his supporting affidavit, he deposed that it is right to have an advocate of his choice to represent him. 8. The parties made oral submissions on 17th March, 2026. I have considered the application, the replies thereof and the oral submissions made by the respective counsel. The issue for determination is *whether the court should allow reinstatement of the amended application dated 19th August, 2025.* 9. The plaintiff/applicant filed the instant application arguing that his application dated 19th August, 2025 was wrongfully dismissed by this court’s order issued on 20th January, 2026. Since the parties give varying accounts of the happenings of the said date, the court shall refer to the proceedings in the matter. Through his application dated 31st December 2024, the plaintiff/applicant obtained status quo orders on 8th January 2025, and he was directed to serve the said application, with the defendants/respondents being directed to file their responses, and the same was to be heard inter-partes on 4th February, 2025. 10. There were numerous back and forth dates and the defendants/respondents were ordered to regularize their appearances, and the court directed that the preliminary objection dated 15th January, 2025 be heard first on 12th March, 2025. Interim orders of status quo remained extended up until this point. The ruling on the preliminary objection was delivered on 14th August, 2025. On 11th November 2025, the court specifically issued the following orders:- * ***The amended application dated 31/05/2025 will be canvassed by way of written submissions.*** * ***The respondents have seven (7) more days from the date hereof within which to file and serve their responses.*** * ***The Plaintiff/Applicant will have fourteen (14) days after service within which to file and serve a supplementary affidavit, if need be, together with submissions.*** * ***The respondents will have fourteen (14) days after service within which to file and serve further affidavits, if need be, together with submissions.*** * ***Mention on 20th February, 2026*** ***to confirm compliance and fixing of a date for ruling.”*** 1. Thus, the said 20th February, 2026 was a mention to confirm compliance with filing of responses to the application dated 31st May, 2025 and amended on 19th August, 2025and fixing of a date for ruling of the same. The court notes that on the material date, 20th February 2026, the coram was as follows: ***‘The court assistant: Vena*** ***Mr. Harris for the 1st, 3rd, 4th, 5th, 6th and 10th Defendants/Respondents – present*** ***Mr. Mutuma for the 2nd, 7th, 8th and 9th Defendants/Respondents – present*** ***Ms. Muthoni*** ***holding brief for Mr. Ngaruiya for the Plaintiff/Applicant – present’*** 1. The said Ms. Muthoni holding brief for Mr. Ngaruiya for the plaintiff/applicant informed the court that they only came on record the previous day and filed their notice of change of advocates, which they, however wished to withdraw, for the reason that the plaintiff/applicant had withdrawn instructions a few minutes before. The court thus dismissed the plaintiff/applicant’s application for want of prosecution. It is thus evident that there was an inadvertence on the plaintiff/applicant in instructing his counsel, but I note that the same was only coming up to confirm compliance with filing of responses to the application, which was to be canvassed by way of written submissions. The plaintiff/applicant, having been diligent in prosecuting his application, and desirous of continuing with prosecution of the same, may be granted reinstatement of his application, in the interest of justice. 2. The court also notes and highlights that the advocate who has filed this instant application, Kelvin Mugambi Mugwuku, is currently inactive for the year 2026 as per the Law Society of Kenya advocate search engine, meaning that the instant application thus was filed at a time when the said advocate is not authorized to practice. 3. **Section 34** of the **Advocates Act** **Cap 16** provides as follows:- ***“(1) No unqualified person shall, either directly or indirectly, take instructions or draw or prepare any document or instrument—*** * 1. ***relating to the conveyancing of property; or*** 2. ***for, or in relation to, the formation of any limited liability company, whether private or public; or*** 3. ***for, or in relation to, an agreement of partnership or the dissolution thereof; or*** 4. ***for the purpose of filing or opposing a grant of probate or letters of administration; or*** 5. ***for which a fee is prescribed by any order made by the Chief Justice under section 44; or*** 6. ***relating to any other legal proceedings; nor shall any such person accept or receive, directly or indirectly, any fee, gain or reward for the taking of any such instruction or for the drawing or preparation of any such document or instrument.”*** 1. While the Supreme Court in the case of **National Bank of Kenya Ltd v Anaj Warehousing Ltd (Petition 36 of 2014) [2015] KESC 4 (KLR)** pronounced that this does not invalidate a document filed by such inactive advocate, it is a call to the plaintiff/applicant to regularize his representation by finding a competent advocate to represent him. The learned judges of the supreme court held that:- ***“The facts of this case, and its clear merits, lead us to a finding and the proper direction in law, that, no instrument or document of conveyance becomes invalid under Section 34(1)(a) of the Advocates Act, only by dint of its having been prepared by an advocate who at the time was not holding a current practising certificate.*** ***The contrary effect is that documents prepared by other categories of unqualified persons, such as non-advocates, or advocates whose names have been struck off the roll of advocates, shall be void for all purposes.*** ***While securing the rights of the client whose agreement has been formalised by an advocate not holding a current practising certificate, we would clarify that such advocate’s obligations under the law remain unaffected. Such advocate remains liable in any applicable criminal or civil proceedings, as well as any disciplinary proceedings to which he or she may be subject.”*** 1. As a consequence of the provisions of **Section 34** of the **Advocates Act**, the court directs that Kelvin Mugambi Mugwuku is not entitled to remuneration with respect to any documents prepared by while not holding a current practicing certificate as dictated by the law. The counsel is also barred from filing any further documents in this matter until he regularizes his inactive status. 2. The court therefore directs that the plaintiff’s application dated 31st December, 2024 and amended on 19th August, 2025 be canvassed by way of written submissions, and I issue the following orders:- 3. ***The defendants/respondents have seven (7) days from the date of this ruling within which to file and serve their responses.*** 4. ***The plaintiff/applicant will have seven (7) days after service within which to file and serve a supplementary affidavit, if need be, together with submissions.*** 5. ***The defendants/respondents will have seven (7) days after service within which to file and serve further affidavits, if need be, together with submissions.*** 6. ***Mention on 4th November, 2026 to take a date for ruling date.*** 7. ***There are no orders as to costs.*** It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY THIS** **12TH DAY OF AUGUST, 2026.** **HON. MBOGO C.G.** **JUDGE** **12/08/2026.** ***In the presence of:-*** *Mr. Benson Agunga – Court assistant* *Mr. Mutuma for the 2nd, 7th, 8th and 9th Defendants/Respondents* *Mr. Harris for the 1st, 3rd, 4th, 5th, 6th and 10th Defendants/Respondents* *Mr. Mugwuku for the Plaintiff/Applicant*