https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5109

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI, MILIMANI** **ELC CASE NO. 491 OF 2014** **PARSELELO OLE KANTAI** **Suing as the Legal Representative of the Estate of the Late** **BENSON KATELA OLE KENTAI ...…………………………….…… PLAINTIFF** **VERSUS** **LEONARD MUTUA MUTEVU …………………...………….. 1ST DEFENDANT** **MINA SAMNAKAY t/a MOHAMMED SAMNAKAY ADV...2ND DEFENDANT** **CHIEF LAND REGISTRAR AT NAIROBI …………………… 3RD DEFENDANT** **HUTS & HOMES LIMITED ……………………………….…. 4TH DEFENDANT** **RULING** 1. By an application dated 7.11.2024 the firm of James T Makori Advocates seeks to replace the former law firm from acting for the plaintiff in this matter. The reasons are contained in the face of the application and in the affidavit sworn on the even date by James T Makori Advocate. 2. The deponent states that his law firm has now been instructed to come on record for the plaintiff in this matter. 3. The deponent says that though the file is closed, no prejudice will be occasioned to the respondent if the application is allowed. The other reason given on the face of the application is that the applicant also needs to apply to reopen the suit for full hearing on merit. 4. The application is opposed by a way of preliminary objection dated 9.2.2026 brought by the 1st defendant that the court became functus officio after it made its decision on 20.2.2015 striking out the suit. Equally the 2nd defendant by a preliminary objection dated 12.2.2025 opposes the application that the suit is time-barred. 5. When the application came up for hearing on 6.7.2026 learned counsel Mr. Makori for the plaintiff applicant urged the court to find that after the ruling of 20.2.2015 there have been subsequent proceedings rendering the preliminary objection brought by the defendants factually incorrect. Learned counsel for the 1st defendant Ms Mwanza submitted that the application hearing does not seek to revive the suit. With leave of court, the 2nd defendant relies on written submissions dated 8.7.2026. 6. To buttress the preliminary objection on time limitation, it is submitted that the course of action herein arose out of a sale agreement dated 9.9.2004 and if the breach occurred in December 2009 when LR No. 209/2951 was registered filing the suit in 2014. 7. It is submitted that the suit, right from inception offends section 4 (1) (a) and 7 of the Limitation of Actions Act; hence this court is bereft of jurisdiction to entertain the suit. 8. The 2nd defendant submits that the suit and the application to revive it after close to a decade offends the doctrine of laches. The 2nd defendant submits that the prolonged delay is prejudicial to the defendants. Reliance is placed in **Ivita vs Kyumbu (1975) KEHC 4 (KLR); Civil Case No. 340 of 1971 (High Court at Nairobi 20th September 1975)**. 9. In this case, it is submitted that the deceased personal legal representative failed to apply for substitution of the deceased within 1 year, making the suit abate, or the cause of the action survive, or applying for the suit’s revival or extension of time after the ruling of 1.2.2012 by Kimondo J. 10. The 2nd defendant submits that there is no existing suit after it abated in 2011 and was declared so by the court, making this court functus officio or lacking jurisdiction after the ruling of 20.2.2015. 11. The 2nd defendant submits that the notice of motion before court on the above reasons is incurably defective incompetent and void in law. 12. Order 9 rule 9 of the civil procedure rules is the law governing change of legal representation post judgment. In this file, by a ruling delivered on 20.2.2015, the court found the suits time barred and struck it out. Following the striking out, there is no evidence that the plaintiff’s applicant has sought for variation, review or appealed against the said ruling to have the suit reinstated or revived for hearing under order 12 rule 7 of Civil Procedure Rules. 13. In the current application the applicant is out seeking for the court to have this suit revived or reinstated or for the setting aside of the dismissal or striking out of this suit. However, one of the grounds on the face of the application is that, he intended to reopen the suit for hearing on merit. The defendants are terming the attempt to change legal representation after close to 10 years of the striking out as based on an incompetent application or suit. 14. The applicant has submitted that the application has been served upon the former law firm making the Preliminary objection is factually incorrect; otherwise since 2015, the parties are aware that subsequent proceedings have occurred in this matter. 15. In **Geoffrey Lutilo Yabuna vs Anthony Munene and 2 Others ELC Case No. 170 of 2017 (2019) eKLR**. The court cited **John Nahashon Mwangi vs Kenya Finance Bank Limited in liquidation (2015) KEHC 6789 (KLR) (2015) eKLR and Shah vs Mbogo and Another (1967 EA116) Wachira Karani vs Bildad Wachira (2016) KEHC 6334 (KLR) (2016) eKLR Parimal vs Vema Bharti (2011) 3SCC545 as cited in Attorney General vs Law Society of Kenya and Another Civil appeal Application No. 133 of 2011 regarding** thediscretion of the court and what constitutes sufficient cause**.** 16. The applicant is seeking to change legal representation after the suit was struck out in 2015. The court is told by the defendants that it lacks jurisdiction and is functus officio, for there is no pending suit worthy of allowing for change of legal representation. 17. Functus officio as a doctrine is one of the mechanisms by which the law gives expression to the principle of finality. In **Raila Odinga and Others vs IEBC and Others (2013) EKLR** the court said that the general rule is that a person with adjudicatory or decision-making powers exercises those powers only once in relation to the same matters making it final and conclusive unless reviewed or valid by the decision maker. 18. In **Bhenjo amalgamated Limited vs KCB Limited (2014) eKLR** the court held that the finality principle hinges on the public interest and the need to have conclusiveness litigation, to do justice to the parties and to boost confidence of the public in the system of justice. 19. The defendants have also termed the application void and null. In **Benjamin Leonard Macfoy vs United Africa Company Limited (1961) UKPC 49 (1962) AC152 (1961) 3All ER 1169 Lord Denning** posited that if an act is void, then it is in law a nullity and not every proceeding which is founded on it is also bad and incurably barred. The court said that one cannot put something on nothing and expect it to stay there otherwise it will collapse. 20. This court derives its jurisdiction from statute, the Constitution or both as held in **Samuel Kamau Macharia and Another vs KCB Limited and Others (2012) eKLR**. A court of law takes judicial notice of its decision. 21. In this file, there is already a decision of 2015 striking out the applicant’s suit for being time-barred. He has now come through another law firm seeking to have the law firm allowed to represent him in a non existing suit. 22. In **Njuw Ngai versus Ephantus Njitu & Another CA No. 29 of 2015** the court said that judgment referred to a judicial determination or decision of a court in the main question of the suit and therefore a dismissal of a suit is similar to a judgment under Order 9 Rule 9 (a) of the Civil Procedure Rules. 23. My interpretation of order 9 rule 9 civil procedure rules, dismissal or striking out a suit does not mean that a court cannot be approached by an applicant who has lost a suit for change of legal representation. The order as framed, does not state that the suit must be reinstated first before leave to come on record is allowed. In my view, the most logical for an aggrieved party who seeks to engage a different law firm post dismissal of his suit is not barred in law to approach the court for leave to change representation. 24. Concerning the preliminary objection that the suit is time-barred the court has already made a finding on the issue and the preliminary objection by the 2nd defendant is res judicata. 25. As to whether other proceedings have taken place post dismissal of the suit, until there is a review, variation or setting aside of the orders striking out the suit, anything else done by the party remains nullity; otherwise, putting something on a nonexistence suit amounted to nullities. Such acts or documents filed by the parties post the striking out remains nullities and inconsequential. 26. The upshot is I find the application merited, leave be and is hereby granted to come on record for the applicant to the firm of J.T Makori and company advocates. Costs to the respondent. The file is marked as closed. 27. Orders accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON 22ND JULY 2026 THROUGH MICROSOFT TEAMS** **HON. JUSTICE C.K. NZILI** **JUDGE** **IN THE PRESENCE OF:** Court Assistant: Julius Mr. Onderi for Makori for 1st Plaintiff Mr. Omondi for Gachie for 1st Defendant Mrs Samkay for 2nd Defendant