https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3502

Kilonzo & another (Suing as Personal and Legal Representative of the Estate of John Kyenze Kilonzo – Deceased) v Rousalis & 4 others (Environment and Land Case Civil Suit 67 of 2020) [2026] KEELC 3502 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEELC 3502 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Case Civil Suit 67 of 2020 AY Koross, J June 9, 2026 Between Peter Kilonzo 1st Plaintiff Francis Makola Kyenze 2nd Plaintiff Suing as Personal and Legal Representative of the Estate of John Kyenze Kilonzo – Deceased and Stavroula Rousalis 1st Defendant Infusion Africa Limited 2nd Defendant John Allan Onchiri Masese 3rd Defendant Chief Land Registrar 4th Defendant Attorney General 5th Defendant Ruling 1.The subject of this ruling is the plaintiff’s unopposed notice of motion dated 18 June 2025. It states that it was filed in accordance with the provisions of Section 3A of the Civil Procedure Act and Order 12 Rule 7 & Order 51 of the Civil Procedure Rules. The plaintiff seeks the following orders from this court: -a.Spent.b.That this honourable court be pleased to set aside the ex parte orders issued on 11th March 2024, dismissing the plaintiffs' suit for want of prosecution.c.That this Honourable Court be pleased to reinstate the plaintiff’s suit for hearing and determination on its merits and to issue a fresh Hearing date for this suit.d.That the costs of this application be in the cause in any event. 2.The motion is supported by the grounds therein as well as the affidavit sworn on the same date by Francis Makola Kyenze. In a nutshell, it is averred that the court dismissed the plaintiff’s suit on 11 March 2024 due to his counsel’s non-attendance. The plaintiff was unaware of the dismissal and, based on the counsel's assurances, believed that the case was proceeding normally. The counsel never informed him of the dismissal and continually misrepresented the case’s status. 3.The plaintiff only discovered the dismissal by making his own inquiry at the court registry. It is asserted that the failure to prosecute was not intentional but resulted from the negligence and misrepresentation of his former advocates. It is emphasised that the plaintiff should not suffer for counsel’s mistakes, and he states he is suspicious of possible collusion in the case, as both the plaintiff’s counsel and the defendants’ failed to attend court despite the summons. Lastly, the plaintiff acted promptly upon learning of the dismissal. 4.When the matter came up for hearing on 26 June 2026, the plaintiff’s counsel, Mr. Anyango, urged this court to allow the motion. Accordingly, having carefully considered the motion, its grounds and affidavit including the provisions of the law and judicial precedents, the issues for determination are whether the law firm of Ms. Victor Anyango & Co. Advocates is properly on record and whether the plaintiff has met the legal threshold to warrant the reinstatement of the suit. These issues will be dealt with sequentially. We deal. a. Whether the law firm of Ms. Victor Anyango & Co. Advocates is properly on record 5.On matters of law, Order 9 Rule 9 of the Civil Procedure Rules governs the post-judgment process by which an advocate or party seeks to come on record in place of an advocate previously on record. This provision 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—(a)upon an application with notice to all the parties; or(b)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.” 6.This proviso does not hinder a litigant from selecting an advocate of their choice. The purpose of this legal provision is to address instances where a litigant attempts to evade paying the legal fees of an advocate who was previously engaged, as well as to inform the court and involved parties of such a change. 7.However, it outlines procedures to be adhered to, and if a party seeks to change Advocates post-judgment, the first scenario is that the incoming advocate or litigant who now wants to act in person must make a formal application to the court with notice to all parties who participated in the suit for the grant of leave to come on record or act in person. 8.In the alternate scenario, the incoming advocate or litigant in person has to obtain the written consent of the previous advocate on record, file the consent in court, and then seek leave to come on record. 9.In this matter, the plaintiff was always represented by the law firm of Ms. Morara Apiemi & Nyangito Advocates until the suit was dismissed on 11 March 2024. Subsequently, Ms. Victor Anyango & Co. Advocates filed a notice of change of advocates on 19 June 2025, pursuant to Order 9 Rule 5 of the Civil Procedure Rules, which permits a party to change their advocate in any cause or matter. However, this notice of change was improper, as there were no pending proceedings before this court. This is so as it is now settled in various judicial decisions, with which this court concurs, that a dismissal of a suit for non-attendance of the plaintiff or for want of prosecution constitutes a judgment in that suit. In the Court of Appeal decision of PETER NGOME vs PLANTEX COMPANY LIMITED [1983] KECA 124 (KLR), the court held:-“Where judgment has been entered under this Order the court, on application by summons, may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”Rule 4(1) does not say “judgment shall be entered for the defendant or against the plaintiff.” It uses the word “dismissed.” The Civil Procedure Act does not define the word “judgment”. According to Jowitt’s Dictionary of English Law 2nd ed p 1025:“Judgment is a judicial determination; the decision of a court; the decision or sentence of a court on the main question in a proceeding or/one of the questions, if there are several.”Mulla’s Indian Civil Procedure Code, 13th Ed Vol 1 p 798 says: “Judgment” means the statement given by the judge on the grounds of a decree or order;” “Judgment - in England, the word judgment is generally used in the same sense as decree in this code.”In my view, a judgment is a judicial determination or decision of a court on the main question(s) in a proceeding and includes a dismissal of the proceedings or a suit under Rule 4(1) of Order IXB or under any other provision of law. A dismissal of a suit, under Rule 4(1), is a judgment for the defendant against the plaintiff.” 10.A similar position was taken in Kimote v Murata Sacco Society [2018] KEELC 3081 (KLR), where the court stated:-“It is clear that a dismissal of a case is similar to a judgement and therefore this application falls squarely under order 9 rule 9 a).” 11.Therefore, the proper procedure for any change of legal representation post dismissal of the plaintiff’s suit is governed by Order 9 Rule 9 of the Civil Procedure Rules. In the circumstances where this procedure has not been complied with, this court finds the motion incompetent, as it offends the provisions of Order 9 Rule 9 of the Civil Procedure Rules. It also finds that the purported notice of change of advocates by Ms. Victor Anyango & Co. Advocates dated 19 June 2025 is incompetent. Notwithstanding the incompetence, it is necessary to address the motion on the merits. b. Whether the plaintiff has met the legal threshold to warrant the reinstatement of the suit. 12.In resolving this matter, the court will examine the pertinent legal provisions that authorise the reinstatement of dismissed suits and will also review established jurisprudence regarding this issue. Concerning the law, and as correctly referenced by the plaintiff in the motion, the relevant statutory provision is found in our Order 12, Rule 7 of the Civil Procedure Rules, which stipulates that where a judgment has been entered, or the suit dismissed, the court, upon application, may set aside or vary the judgment or order on such terms as are just. Consequently, the motion is properly presented before this court. 13.The jurisprudence that guides this court in the exercise of judicious discretion in dealing with such motions is settled, and the decision of Shah v Mbogo and Another [1967] EA 116 Limited [2020] eKLR, which was cited with approval in the case of John Waweru Njenga & 5 others v Motor Botique, detailed the guiding principles as follows: -“This discretion (to set aside ex parte Court decisions) is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.” 14.These criterion is also restated in the long-cited decision of Ivita v Kyumbu [1975] KEHC 4 (KLR), whereby in this case, the court held that the tests to be applied are whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. In this decision, the court stated thus: -“So the test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the plaintiff and defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The defendant must however satisfy the court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff’s excuse for the delay and that justice can still be done to the parties notwithstanding the delay the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time. Where the defendant satisfies the court that there has been prolonged delay and the plaintiff does not give sufficient reason for the delay the court will presume that the delay is not only prolonged but it is also inexcusable and in such case the suit may be dismissed.” 15.Since the plaintiff is the one who has moved the court, the onus was on him to substantiate his assertions. 16.Firstly, this court respectfully disagrees with the plaintiff’s contention that the motion was filed with undue delay, given that it was submitted more than one year subsequent to the dismissal of the suit. The plaintiff asserts that the period should be calculated from the date he physically perused the court file. However, the record does not demonstrate the specific date on which he conducted this perusal, or is there evidence showing that he submitted a formal request for access to the file in accordance with the customary procedures outlined in the High Court Registry Operation Manual. Furthermore, it has not been mentioned which court assistant retrieved the file on his behalf. In this court’s humble view, the plaintiff never perused the court file. 17.Secondly, he asserts that he was in constant communication with his advocate concerning the case, who purportedly assured him that proceedings were advancing satisfactorily. Nevertheless, the court was not furnished with such correspondence, whether by written letter, email, or other electronic means. Furthermore, to the extent that he claims to have perused the court file, which this court disputes, he would have observed that on 24 July 2023, his counsel informed the court that the plaintiff had emailed him, expressing his intention to act in person. This record has not been disputed, and it follows that he and his counsel had fallen out during the proceedings, which negates his assertion of a constant communication with his counsel. 18.Finally, he has impugned the conduct of his counsel and that of the defendants’ counsel on the basis of alleged collusion to abscond from court attendance. He has not supported this statement with tangible and credible evidence. The record, however, does not substantiate this claim, as the counsel for the 2nd and 3rd defendants has consistently demonstrated readiness to prosecute their case and was present in court with witnesses on the date the matter was dismissed for want of prosecution. Notably, some defendants had been served by substituted means and had not entered appearances; it remains unclear which defendant and/or counsel allegedly engaged in such collusion. 19.By examining all these assertions, it comes to this court’s mind that the plaintiff is aware he is grasping at straws and has fabricated various excuses for his failure to attend court, which this court will not entertain. The case was his responsibility, and the onus was on him to take concrete steps to ensure the matter was concluded promptly. He was the architect of his own misfortune. This matter has been pending before the court for a considerable period, and the defendants would be prejudiced if it were reinstated. Had this court not found the motion incompetent, it would have found it lacking merit and dismissed it. 20.Guided by our constitutional principles, the law and established precedents, this court finds, in conclusion, that the notice of motion dated 18 June 2025 is incompetent. It is struck out, and, since it is unopposed, the plaintiff will bear his own costs.It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 9TH DAY OF JUNE, 2026.HON. A. Y. KOROSSJUDGE09.06.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Mr. Anyango for plaintiff/applicant.No appearance for respondent.