(In respect of the Notice of Motion application dated 27th November 2025 brought by the Plaintiffs/Applicants under Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, alongside Sections 1A, 1B & 3A of the Civil Procedure Act)
Introduction
1. Before this Honourable Court is a Notice of Motion application dated 27th November 2025. The application is brought by the Plaintiffs/Applicants under Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, alongside Sections 1A, 1B & 3A of the Civil Procedure Act.
2. The Plaintiffs/Applicants pray for the following orders:
a. THAT the orders issued on 6th October 2025, which struck out and dismissed this suit during a Notice to Show Cause, be set aside.
b. THAT the court proceedings of 6th October 2025 and all consequential orders be set aside, and the suit be reinstated for hearing and determination on its merits.
c. THAT a temporary injunction be issued restraining the Defendant/Respondent, his agents, or employees from interfering or dealing with the subject church premises, assets, leadership, or operations in any manner adverse to the Plaintiffs/Applicants pending the hearing and determination of the application.
d. THAT the costs of the application be provided for.
3. The application is premised on the grounds set out on the face of the Motion and is further supported by an affidavit sworn by the 1st Plaintiff/Applicant, James Maina Ng'ang'a, on 27th November 2025.
4. The Applicants contend that the dismissal of the suit on 6th October 2025 was the result of an inadvertent non-attendance by their newly appointed counsel during a virtual Notice to Show Cause. They assert that while their former advocates were present online, they could not address the Court as they lacked proper audience following a Notice of Change of Advocates. The Applicants aver that they should not be penalized for an omission entirely outside of their control.
5. Substantively, the Applicants state that the underlying dispute involves the ownership, leadership, and control of valuable church property raising significant issues of public interest. They allege that the Defendant/Respondent is currently in unauthorized occupation of the church premises having unlawfully changed the branch name, which has caused financial loss, disruption of church activities, and heightened tensions within the congregation. Consequently, the Applicants maintain that it is in the interest of justice to reinstate the suit to avert a breach of peace and to prevent the Plaintiffs/Applicants from suffering irreparable harm.
6. In response to the application, the Defendant/Respondent, Samuel Munene Muriithi, filed a Replying Affidavit sworn on 5th December 2025 opposing the Motion. He prays that the application be dismissed with costs, characterizing it as fatally defective, an abuse of the court process, and a mere afterthought designed to delay justice.
7. The Defendant/Respondent avers that the suit was rightfully dismissed on 6th October 2025 because the Plaintiffs/Applicants had shown no interest in prosecuting the matter and failed to take any meaningful steps for over four years since the suit was instituted in 2021. He contends that blaming the non-attendance on a newly appointed advocate is a flimsy excuse meant to hoodwink the court, asserting that the Notice of Change of Advocates was a tactic employed merely to buy time. He further argues that an advocate's mistake should not be utilized as a blanket cover for the Plaintiffs/Applicants' own indolence and failure to attend or follow up on their case.
8. Regarding the church premises and leadership, the Defendant/Respondent maintains that he is the rightful leader of the local congregation and has been managing the premises peacefully. He vehemently denies unlawfully changing the branch name or causing disruptions, stating instead that the congregation consciously decided to distance itself from the Plaintiffs/Applicants' "toxic and dictatorial leadership".
9. Finally, the Defendant/Respondent claims that the Plaintiffs/Applicants are forum-shopping and attempting to use the court to harass him and the congregation. He avers that granting the orders sought would cause immense prejudice by effectively evicting the congregation from their place of worship. He urges the court to uphold the overriding objective of justice, emphasizing that litigation must eventually come to an end and that indolent parties should not be rewarded.
Directions
10. The application was canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this ruling.
Issues for determination
11. I have carefully considered the Notice of Motion application dated 27th November 2025, the supporting affidavit by the 1st Plaintiff, the Replying Affidavit sworn by the Defendant/Respondent, and the rival written submissions filed by both parties.
12. From the pleadings and submissions before me, the following key issues crystallize for determination:
i. Whether the Applicants' counsel is properly on record.
ii. Whether the Applicants' counsel is properly on record and whether procedural defects in their appointment vitiate the present application.
iii. Whether the orders issued on 6th October 2025 dismissing the suit should be set aside and the suit reinstated.
Analysis and Determination
13. The Defendant/Respondent has raised an objection, contending that the incoming advocates for the Applicants did not comply with Order 9 Rule 9 of the Civil Procedure Rules, and therefore lacked the audience to bring this application.
14. It is not in dispute that on 6th October 2025, the firm of C.M. Ongoto & Co. Advocates appeared for the Applicants but had not fully regularized their Notice of Change of Advocates, leading to the court denying them an audience.
15. While Order 9 Rule 9 governs the change of advocates, this must be read in tandem with Order 9 Rule 10 of the Civil Procedure Rules, which explicitly provides:
"An application under rule 9 may be combined with other prayers provided the question of change of advocate or party intending to act in person shall be determined first."
16. This provision vests the Court with the discretion to regularize representation before delving into the substantive prayers of an application. The failure to file a properly signed Notice of Change of Advocates before appearing in a virtual court is a procedural misstep, not a fatal substantive flaw. On this point, I am guided by the holding in Joseph Kiangoi v Wachira Waruru & 2 Others [2008] eKLR, where the court pronounced itself as follows:
"I hold that all the processes filed by the new advocates after they were granted leave on 30th November, 2007 are good notwithstanding their failure to file and serve a notice of change of advocates. That lapse will be cured by filing and serving such notice of change of advocates."
17. I find that the Applicants have since sought to regularize their representation. To strike out this application on the basis of a curable defect in the filing of the Notice of Change of Advocates would be to elevate procedural technicalities above substantive justice, contrary to the dictates of Article 159(2)(d) of the Constitution of Kenya, 2010. Consequently, I deem the firm of C.M. Ongoto & Co. Advocates properly on record for the Applicants.
ii. Whether the orders of 6th October 2025 should be set aside and the suit reinstated
18. The gravamen of the Applicants' motion is that the suit was dismissed during a Notice to Show Cause purely due to the inadvertent non-attendance (or lack of proper audience) of their newly appointed counsel. The Respondent, conversely, argues that the Applicants have been indolent since instituting the suit in 2021 and that the dismissal was a justified consequence of their failure to prosecute it.
19. The law regarding the setting aside of dismissals and reinstatement of suits is well settled. The primary consideration is whether the delay or non-attendance is excusable, and whether the dictates of justice favor granting the parties a full hearing. The locus classicus on this test is Ivita v Kyumbu [1984] KLR 441, where the court laid down the guiding principle:
"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..."
20. Furthermore, it is a general principle of our justice system that the mistakes of counsel should not be visited upon an innocent litigant especially where the litigant demonstrates that he had made effort to remedy/mitigate the situation upon falling out with the previous counsel. The Applicants aver that they had instructed counsel to attend the virtual session when this matter was listed for notice to show cause, and they should not be condemned unheard due to their advocate's failure to regularize his appointment in time. Denying the Applicants a hearing on this basis would infringe upon their constitutional right to a fair hearing. Article 50(1) of the Constitution of Kenya, 2010, is unambiguous every person has the right to a fair hearing before a court or other independent and impartial tribunal.
21. This Court is further fortified by the persuasive jurisprudence of Ringera J. (as he then was) in Microsoft Corporation vs Mitsumi Computer Garage Ltd & Another [2001] eKLR, where he succinctly captured the role of procedural rules:
"....Rules of procedure are handmaidens and not mistress of justice and should not be elevated to a fetish. Theirs is to facilitate the administration of justice in a fair orderly and predictable manner, not fetter or choke it."
22. The dispute herein involves the ownership and control of a church and its assets. These are weighty, substantive issues that carry significant interest for the congregation involved. Resolving such a dispute via a procedural dismissal under a Notice to Show Cause leaves the underlying conflict unresolved and festering.
23. To ensure the ends of justice are met, this Court invokes its inherent powers under Section 3A of the Civil Procedure Act, which mandates the court:
"…… to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court."
24. Additionally, Section 95 of the Civil Procedure Act provides this Court with the requisite latitude to excuse the procedural delays in the prosecution of this matter:
"Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired."
25. I am persuaded that the Applicants' failure to secure an audience on 6th October 2025 was an excusable procedural lapse. The Respondent has not demonstrated that he will suffer any prejudice that cannot be compensated by an award of costs if the suit is reinstated and heard on its merits. In that regard, considering that the Defendant has been attending court and has been inconvenienced by the Applicants, the court will award him thrown away costs assessed at Kshs. 50,000/- payable within the next thirty (30) days from the date of this ruling.
26. Regarding the prayer for a temporary injunction, this is an issue that the court already considered. The Plaintiffs are seeking a second bite of the cherry. Nonetheless and in accordance with the doctrine of Lis pendens, the court directs that the status quo as it exists today regarding the subject church premises and assets be maintained pending the hearing and determination of this suit, to avert any breach of peace.
27. Having analyzed the law and the facts before me, I find that the Notice of Motion application dated 27th November 2025 is merited as regards the prayers for setting aside the orders issued on 6th October 2025. In the interest of substantive justice, and to allow the parties to definitively resolve the underlying dispute over the church premises, I make the following orders:
a) THAT the Notice of Change of Advocates bringing the firm of C.M. Ongoto & Co. Advocates on record for the Plaintiffs/Applicants is hereby deemed as properly filed and admitted.
b) THAT the orders issued on 6th October 2025 dismissing this suit be and are hereby set aside in their entirety and this suit is hereby reinstated for hearing and determination on its merits.
c) THAT pending the hearing and determination of the main suit, both parties are directed to maintain the status quo as it exists today regarding the subject church premises and assets to avert any breach of peace.
d) THAT the Defendant is awarded thrown away costs assessed at Kshs. 50,000/- payable by the Plaintiffs/Applicants within the next thirty (30) days from the date of this ruling.
It is so ordered.
Dated, Signed and Delivered Virtually this 23rd Day of April, 2026.
M.D. MWANGI
JUDGE
In the virtual presence of:
Mr. Simiyu h/b for Mr. Ongoto for the Plaintiffs/Applicants
Mr. Thuita for the Defendant/Respondent
Court Assistant: Peninah
M.D. MWANGI
JUDGE