I. Introduction
1. The Ruling before this Honourable Court relates to the Notice of Motion application 4 th September, 2025. It was by the Pwani Baridi Waterways Limited – the Plaintiff/Applicant herein following the dismissal of the Applicant’s suit for non – attendance by the Plaintiff with costs as per the orders of 2 nd April, 2025 delivered by this Court.
2. The application was premised upon the provisions of Sections 1A,1B,3A of the Civil Procedure Act, Cap. 21, Orders 45 and 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law.
3. According to Counsel the failure to attend court by the Plaintiff/Applicant was not intentional but inadvertent due to transfer of the former Judge handling the matter. As a result of the dismissal the 1 st Respondent who had previously trespassed upon the suit property was now engaging in wastage of the property and was further alienating and transferring the same to third parties in collusion with the 2 nd Respondent.
4. Thus, the court was urged to set side the dismissal orders and reinstate the suit in a bid to foster the applicants guaranteed right to property as envisaged under the provision of Article 40 of the Constitution 2010.
5. Upon service, the application was opposed by Linus Chira Muya, the 1 st Respondent through filing of a Replying Affidavit dated 3 rd October, 2025. The 2 nd Respondent did not participate in the instant application.
II. The case by the Plaintiff/Applicant
a) The Plaintiff/Applicant sought for the following orders:- -
b) Spent.
c) That this Honourable Court be pleased to set aside and/or vacate the orders made on 2 nd April, 2025 dismissing the Plaintiff's suit for non - attendance together with all consequential orders.
d) That the suit herein be reinstated for hearing and determination on its merits.
e) That the costs of this application be provided for.
6. The application was premised on the grounds, testimonial facts and the averment made out under a 23 Paragraphed affidavit sworn by HELLEN MUEMA who averred as follows:-
a) She was a Co-director of the Plaintiff company.
b) Due to irreconcilable differences, together with her Co -director, they had currently instructed the Law firm of Meesrs. Muema M.M & Company Advocates to act for them. Consequently, they had withdrawn instructions earlier issued to the Law firm of Messrs. Nancy M. Kilonzo & Company.
c) Upon perusal of the court file, they had noted that this suit was sadly dismissed with costs on grounds of non-attendance on 2 nd April, 2025 by Hon. Justice Naikuni. The deponent stated that they were never aware of the dismissal as no hearing notice was served upon them.
d) According to the deponent, their former counsel was unaware of the dismissal date as she was indisposed.
e) It was apparent that this was the first appearance before the new Judge after the transfer of Justice A. Dena, which caused inadvertent confusion and non-attendance.
f) The deponent averred that she has always been diligent in pursuing this matter, as the suit land forms part of her matrimonial home where her family resided before the illegal entry by the Defendants/Respondents.
g) It was also stated that prior to dismissal, the 1 st Defendant/Respondent made several attempts to have the suit struck out on other grounds of technicality, alleging that the Company by the Plaintiff/Applicant was non-existent, in efforts to conceal his fraudulent acquisition of the land and which application was opposed vide a Replying Affidavit dated 27 th September, 2023.
h) It was alleged that suspiciously, the Plaintiff/Applicant Company's trading in the name and style of Pwani Baridi Waterways Limited disappeared from the Business Registration System (BRS) and was replaced by a fictitious entity, Pwani Barindi Waterways Limited, claimed by the 1 st Defendant/Respondent.
i) Additionally, proper further investigations revealed that the CR - 12 form of the 1 st Defendant’s/Respondent's company, Pwani Barindi Waterways Limited, allegedly lists the deponent and her Co - director as directors without their consent.
j) Meanwhile, a copy of Green card search of the suit land clearly indicated the Plaintiff/Applicant company as the legitimate registered owner of the suit land before the fraudulent transfer to the 1 st Defendant/Respondent.
k) This Honourable Court in its ruling of 17 th April, 2024 observed the irregularities in the transfer of the subject land procured in favour of the 1 st Defendant/Respondent and underscored the seriousness of the allegations raised.
l) Since the suit herein was dismissed on grounds of technicality, as demonstrated in the foregoing, there was an urgent need to reinstate the claim herein so that it could be heard and determined on merit.
m) The Plaintiff/Applicant would suffer great prejudice and irreparable harm if the dismissal was not set aside, as the Defendants/Respondents were actively wasting and alienating the suit land.
n) The deponent stated that the suit had never been heard on merits and the Plaintiff/Applicant had a strong case against the 1 st & 2 nd Defendants/Respondents.
o) There would be no prejudice suffered by the 1 st & 2 nd Defendants/Respondents if this application was allowed as the dismissal was occasioned by a mistake of Counsel, which should not be visited upon the Plaintiff/Applicant.
III. The responses by the 1 st Defendant/Respondent
7. As already indicated above, while opposing the application, the 1 st Defendant/Respondent filed a Replying Affidavit dated 3 rd October, 2025 sworn by the 1 st Defendant/Respondent himself. The deponent in response stated as follows that:
a) He had been ably informed by his advocate on record that Messrs. Muema M. M. & Co. Advocates had no “Locus Standi” to file the Application and on that ground alone the Application should be struck out and or dismissed.
b) The hearing date of 2 nd April, 2025 was given by the trial Court on 20 th September, 2024 and indeed on the same date the Plaintiff/Applicant's Advocates were duly served vide their email address hence they were well aware of the said hearing date of 2 nd April, 2025 but they decided not to attend Court.
c) It was false, misleading, and grossly dishonest for the Plaintiff/Applicant's Advocate to allege ignorance of the said hearing date of 2 nd April, 2025.
d) The contents of Paragraphs 4, 5, 6 and 7 of the Supporting Affidavit were therefore untrue, devoid of merit, and should be disregarded in limine.
e) Further, the contents of Paragraphs 8 and 9 of the supporting affidavit were mere allegations without evidentiary foundation and were calculated to improperly invite this Honourable Court to exercise its discretion in favour of a party who was plainly undeserving.
f) On the date of hearing he attended court with his witness and was ready to prosecute his defence. It was the absence of the Plaintiff/Applicant and their counsel on record that necessitated the dismissal of the suit for non-attendance. Further that the failure to attend court was deliberate and should not be entertained by the court.
g) There was indolence on the part of the Plaintiff/Applicant as it had taken almost five ( 5 ) months before filing of the instant application.
h) In conclusion, the Plaintiff/Applicant's Application of 4 th September, 2025 was a total waste of Court's time. It was misconceived, bad in Law, defective, premature, lacked merit, an abuse of the Court process and it ought to be dismissed with costs.
IV. Submissions
8. On 24 th November, 2025 while in the presence of all parties, the Honourable Court granted direction to have the Notice of Motion application dated 4 th September, 2025 be canvassed by way of written submissions.
9. Pursuant to that all parties complied. The Honourable Court reserved the Ruling on notice. Eventually, it was delivered on 30 th June, 2026 accordingly.
A. The Written Submissions by the Plaintiff/Applicant
10. The Law firm of Messrs. Muema M.M & Co Advocates filed written submissions dated 12 th December, 2025 on behalf of the Plaintiff/Applicant herein. Mr. Muema Advocate commenced the submissions by providing a brief background of the matter. He further identified three ( 3 ) issues for determination and which were;
a. Whether the Court had discretion to set aside its order dismissing the suit for non-attendance.
b. Whether the Plaintiff/Applicant had demonstrated a meritorious case deserving reinstatement.
c. Whether the 1 st & 2 nd Defendants/Respondents would suffer any prejudice if the suit was reinstated.
11. On the first issue for determination. The Learned Counsel submitted that the power to reinstate a dismissed suit by the court is derived from the provisions of Order 12 Rule 7 of the Civil Procedure Rules, 2010. That from the said provisions and in relation to the instant suit none of the circumstances show indolence, disinterest, or delay by the Applicant. It was submitted that from the Supporting Affidavit, the Plaintiff/Applicant demonstrated that her former advocates were unaware of the hearing date due to non-service of the notice and the confusion arising from the transfer of the previous trial Judge.
12. That prior to the dismissal, the record could bear witness that the Applicant was ever prudent in prosecuting the suit hereof to its finality. However due to the deponent's ill health, proper instructions were issued in pursuance for a witness substitution application a fact that was well communicated and made known to the said advocate.
13. The Learned Counsel averred that the dismissal was caused by a curable mistake by the advocate and that the Plaintiff/Applicant being the initiator of the suit was greatly jeopardized. To buttress on this point, the court was implored to be guided by the holding in the case of:- “ Ngoso Gen Contractors – Versus - Jacob Gichunge [2019] eKLR” , where non-attendance caused by counsel's failure to diarise a date was excused. Similarly, in the case of:- “ Belinda Murai & Others – Versus - Amos Wainaina [1979] KLR 278” where the Courts held that litigants should not suffer for Counsel's mistake "an error is a human mistake, not a deliberate act" .
14. On whether the Applicant has demonstrated a meritorious case deserving of reinstatement. The Learned Counsel asserted that the suit property was the matrimonial home of one of the directors. However, it had been transferred illegally to the 1 st Defendant/Respondent giving rise to this suit. That the Court vide its ruling of 17 th April, 2024, acknowledged irregularities on the face of record in the transfer and directed scrutiny of the companies’ registry by noting the importance of the director's input during hearing of the suit. Therefore, it was necessary to hear the matter conclusively for the issue of ownership and the alleged illegal transfer to be determined with finality.
15. On the third issue for determination. The Learned Counsel submitted by stating that reinstatement of the suit would ensure that the Plaintiff/Applicant never suffered any prejudice at the hands of the 1 st & 2 nd Defendants/Respondents. The court was urged to allow the application as prayed.
B. The Written Submissions by the 1 st Defendant/Respondent
16. The 1 st Defendant/Respondent’s submissions dated 31 st December 2025 were filed by the Law firm of Messrs. Mogaka Omwenga & Mabeya Advocates. Mr. Omwenga Advocate first submitted that the Plaintiff/Applicant’s Counsel on record was not properly on record pursuant to the provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010. This was due to the fact that they had entered appearance after Judgement of the matter and hence without obtaining the leave of court as required by law.
17. It was also submitted that no good grounds had been shown by the Plaintiff/Applicant to aid the court in exercising its discretion in dismissing the matter. That the application for reinstatement had been filed five ( 5 ) months after the dismissal and which delay was referred to as being inordinate. The Learned Counsel referred to several authorities and urged the court to be guided by the same in dismissing the application.
C. The Further written Submissions by the Plaintiff/Applicant.
18. The Plaintiff/Applicant filed further submissions dated 16 th February, 2026 mainly on the issue of ‘ locus standi ” on the part of the Plaintiff/Applicant’s Counsel in filing the instant application and being on record. It was submitted that the provision of Order 9 Rule 9 of the Civil Procedure Rules, 2010 which governs change of advocates after judgment. However, the operative word is "Judgment." That dismissal for non-attendance at a preliminary stage never amounted to a Judgment on merit. It never determined the substantive rights of the parties. That the issue was a procedural technicality that did not go to the substance of the suit and hence ought to be disregarded by the court.
V. Analysis and Determination
19. The Honourable Court has keenly considered all the filed pleadings, the documentary evidence adduced, the written submissions, the cited authorities, the relevant provisions of the Constitution of Kenya 2020 and the Statutes herein.
20. For the Honorable Court to arrive at an informed, reasonable, just and fair decision, there are three (3) salient issues to be determined. These are: -
a) Whether the Applicant’s Counsel is properly on record
b) Whether the Plaintiff/Applicant has met the threshold for setting aside order of dismissing the suit herein
c) Who shall bear the costs of the application.
ISSUE No. a). Whether the Applicant’s Counsel is properly on record
21. Under this sub heading, the court will interrogate whether the Law firm of Messrs. Muema M.M & Co Advocates is properly on record having taken over the matter from the previous Law firm of Messrs. Nancy M. Kilonzo & Company Advocates without leave of court. As a preliminary issue of law, the 1 st Defendant/Respondent has emphatically submitted that the Plaintiff/Applicant’s Counsel is not properly on record for non – adherence to the provision of Order 9 Rule 9 of the Civil Procedure Rules, 2010 which is couched in mandatory terms. As such the application ought to be dismissed in its entirety.
22. The Plaintiff/Applicant’s case is that the dismissal of the suit herein was out of their control as the whole court process was being managed by its counsel on record. The deponent in the application to reinstate the suit stated that at the time of dismissal she was unwell and was infact unaware of the hearing date and the progress of the matter. These assertions were disparaged by the 1 st Defendant/Respondent who stated that the law was clear on what transpires when a change of advocate is made after Judgement.
23. Thus, it is imperative that the Honourable Court as a matter of precedence deal on this significant issue of law. The provision of Order 9 Rule 9 of the Civil Procedure Rules, 2010 (CPR) provides that:
“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 ca se may be.”
24. The High Court has expansively deliberated on this issue. I have come across a myriad of authorities on the failure to seek leave to come on record after judgement. There happens to be two schools of thought on the subject matter. On the one hand, the holding that lack of leave was a fatal mistake, while the other, the courts have treated the issue as a mere technicality that ought not to lead to dismissal of a suit. Muchelule, J in the case of:- “ John Langat – Versus - Kipkemoi Terer & 2 others [2013] eKLR” stated that:
“There was no application made to change advocates. In the Replying Affidavit, the Appellant swore that there was a consent entered into between his previous advocates and his present advocate to effect change. This was done following the Judgement. He annexed the consent. There is no evidence that the Respondents were put in the picture. But more important, the consent could not effect the change of advocates “without an order of the court.” No such order was sought or obtained. It follows, and I agree with Mr. Theuri and Mr. Nyamweya, that Anyoka & Associates are not properly on record for the appellant, and therefore the appeal and the application are incompetent.”
25. Similar position is found in the case of:- “ Florence Hare Mkaha – Versus - Pwani Tawakal Mini Coach & another [2014] eKLR; Mombasa H.C.C.C. No. 85 of 2010” wherein Mary Kasango, J held that:-
“16. The question is; was the execution validly carried out on behalf of the Plaintiff? There are glaring anomalies in respect of the representation of the Plaintiff. As clearly set out above the Plaintiff was represented by Pandya & Talati Advocate up and until judgment was entered in her favour on 31 st July, 2012. Once judgment was entered the provisions of Order 9 Rule 9 had to be complied with if the Plaintiff required to change the advocates representing her. This was not the case. She was variously represented by Shikely Advocate, who filed the submissions in support of the Plaintiff’s Bill of Costs, and was represented by Kinyua Njagi & Co. Advocates through the execution of the decree stage. In both those occasions the two advocates did not obtain an order of the court to take over the conduct of Plaintiff’s case. Much more Shikely Advocate was not properly on record to enable him consent for Kinyua Njagi & Co. Advocates to conduct the Plaintiff’s case.”
26. However, a contrary view – point has been taken over the same subject matter. Mutungi, J treated the failure to comply with the provision of Order 9 Rule 9 of the Civil Procedure Rules, 2010 as a mere technicality and held in the case of:- “ Ngitimbe Hudson Nyanumba – Versus - Thomas Ongondo [2018] eKLR held” that:
“19. The appellant’s Notice of Motion dated 8 th July 2013 was predicated on the view that the firm of Nyamori Nyasimi came on record for the respondent after judgment without leave of the court and therefore was irregular, null and void and all orders emanating and/or ensuing thereafter were a nullity and ought to be cancelled. The appellant had every opportunity to challenge the appointment but did not do so. Instead the appellant participated in the proceedings and did not raise any issue regarding the irregularity of the Notice of Change of Advocate that placed Nyamori Nyasimi advocate on record. One may ask what injustice was occasioned to the appellant by the appointment of Nyamori Nyasimi advocate after judgment allegedly without leave? I discern none, the appellant continued to participate in the proceedings without raising any objection. The idea/objective behind amending the Civil Procedure Rules to provide that where judgment had been entered any change of advocate was to be with the leave of the court was essentially for the protection of the advocates to safeguard their fees from their clients. The amendment was aimed at preventing mischief whereafter an advocate worked tirelessly for a client upto obtaining a judgment, the advocate is not debriefed by merely another advocate filing a notice of change or the client filing a notice to act in person so that execution of the decree is by another advocate who did not participate in the trial and/or by the client directly with the object of denying the advocate his fees or costs.
20. Although I agree with the learned magistrate that there was an inordinate delay in bringing this application challenging the notice of change of advocate without leave, my view is that no leave was required as at the time and that even if it was required I would nevertheless not have been persuaded to annul the subsequent and consequential orders from the date the notice of change was filed. The appellant suffered no prejudice at all by reason of such change of advocate. The appellant participated and/or was not prevented from participating in the proceedings and there was no miscarriage of justice. The court is enjoined under Sections 1A and 1B of the Civil Procedure Act, Sections 3(1) and 19(1) of the Environment and Land Court Act and Article 159 2(d) to administer justice expeditiously and justly and without undue regard to technicalities of procedure and it is my view that this is such a case where the court would have been entitled to disregard the strict rules of procedure in order to do substantive justice.”
27. Legally speaking, the essence of the provisions of Order 9 Rule 9 of the Civil Procedure Rules is to safeguard the works of an Advocate who has proceeded with a matter to the end only to be short-changed and replaced with another advocate after Judgement. By and large, this Honourable Court strongly holds that the provision of Order 9 Rule 9 of the Rules is couched in mandatory terms and has to be adhered with. The leave of Court is compulsory as it is not a procedural technicalities at all as envisaged under the provision of Article 159 ( 2 ) ( d ) of the Constitution of Kenya, 2010.
28. However, the instant case the facts are distinct. Ideally and from assessment of the circumstances of this case, the matter is yet to be heard conclusively but was dismissed for non – attendance under the provision of Order 12 Rule 2 of the Rules. The Plaintiff/Applicant states that the dismissal was occasioned by her Counsel on record failure to turn up in court. In my view, what is happening in this scenario is the Plaintiff/Applicant exercising her right to seek representation as provided for under Article 50 ( 2 ) ( g ) and ( h ) of the Constitution that they feel is proper and bound to safeguard their interest. To this very end, I am in full agreement with the dictum by Mutungi, J in “ Ngitimbe Hudson Nyanumb a (Supra)” and it is my view that counsel on record be allowed to proceed in the interest of justice as this is an issue of procedural technicality, no prejudice is to be suffered by the Respondents in the instant case due to the change in advocate.
ISSUE No c). Whether the Plaintiff/Applicant has met the threshold for setting aside order of dismissing the suit herein
29. The provision of Order 12 Rule 7 of the Civil Procedure Rules, 2010 empowers the court to set aside an order of dismissal and provides 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.”
30. The provision of Order 51 Rule 15 of the Civil Procedure Rules grants the court jurisdiction to set aside an order made ex - parte. The principles to set aside ex parte orders are well settled. This court has unfettered discretion to set aside ex parte orders, on terms that are just, fair and the discretion clothed on the court must be exercised judiciously based on sufficient cause and not whimsically.
31. The Plaintiff/Applicant informed this court through the affidavit on record in support of the application that she was keen on proceeding with the case to its logical conclusion. That the dismissal of the suit was occasioned by her then counsel on record indolence and was not her on doing. That the said actions by her then advocate necessitated the change of advocate witnessed in the application. The mistakes of counsel should therefore not be visited upon a client. The 1 st Defendant/Respondent’s rejoinder through its replies and submissions can be summed in one sentence, that a case belongs to the litigant and not their advocate.
32. The 1 st Defendant/Respondent’s notion has been echoed in a number of decisions by the court. See the case of:- “ Simion Waitim Kimani & Three others – Versus - Equity Building Society (2010) eKLR” where Koome J [CJ] in Paragraphs 4 and 5 held:-
“The courts have discretion generally to reinstate a suit which is dismissed for non-attendance but in all matters involving the exercise of the courts discretion, it must be exercised judiciously based on facts and law. The party seeking to reinstate the suit must also demonstrate good faith and the application should be brought to court without unreasonable delay. This suit was filed on 12 th March, 2002 and since 29 th November, 2004 no steps were taken to prosecute it. It is the court on its own motion that issued the notice to show cause why the suit should not be dismissed for want of prosecution. The Plaintiff now claims that his lawyer who was on record Messrs Cerere Mwangi & Co. left the country to settle in the United States in the year 2004. The Plaintiff who instituted this suit never enquired about their lawyer or their matter for the last 6 years.”
Even if this court were to exercise its discretion in favour of the Plaintiff that would be against the principle of equity which does not aid the indolent but aids the vigilant. Secondly, this suit was dismissed by the court on its own motion pursuant to the provisions of Order 16. The notices were sent. No cause was shown and the court dismissed the suit for want of prosecution. According to rule 6 of order 16, if the suit is dismissed when no steps were taken for a period of three years the plaintiff can only bring a fresh suit subject to the Law of Limitation”
33. Additionally, on the same subject matter, I seek refuge from the case of: “ Alice Mumbi Nganga – Versus - Danson Chege Nganga & Another (2006) eKLR” by Kimaru J where he states:-
“This court has unfettered discretion to set aside any order which was entered ex - parte. This discretion however, has to be exercised judicially. The applicant must satisfy this court that she has good reasons why she failed to attend court when the said application for dismissal was heard and determined in her absence. In the first place, she cannot blame her counsel who was then on record for failing to attend court when the said application was listed for hearing. This court has ruled in several cases that a civil case once filed, is owned by a litigant not his advocate. It behoves the litigant to always follow up his case and check its progress. He cannot come to court and say that he was let down by his advocate when a decision adverse to him is made by the court due to lack of diligence on the part of his advocate. I think it has been ruled by the Court of Appeal that where an advocate fails to prosecute a case to the satisfaction of his client then such a litigant has an option of suing such an advocate for professional negligence. The mistake of counsel will not, per se, make this court to exercise its discretion in favour of an aggrieved litigant.”
34. In the case of: “ Peter Kinyari Kihumba – Versus - Gladys Wanjiru Migwi & Another C.A Civil Application No. NAI 121 of 2005 (6/05NYR) (unreported)” Waki J.A, held at page 3 that:-
''With respect, l think the applicant and his counsel adopted a casual attitude to this litigation and they have no one but themselves to blame if no further indulgence is extended to them. The plea they made is that this is a land matter, but the simple answer is that even in land matters there must be an end to litigation. It is for the reason that it was a land matter that it should have been handled with the sensitivity and diligence that entails such matters. Instead the applicant and his advises exhibited undesirable nonchalance, which l am not inclined to countenance''
35. Thus, it is now a well settled principle that a court should be slow to dismiss a suit for want of prosecution unless where interests of justice dictate otherwise. The rationale to this principle is that every party must be accorded the right to be heard pursuant to constitutional dictates of the non-derogable right to fair hearing. See the case of:- “ Naftali Opondo Onyango – Versus - National Bank of Kenya Ltd [2005] eKLR” , that:-
“However, in deciding whether or not to dismiss a suit under rule 6 it is my view that a court will be slow to make an order if it is satisfied that the hearing of the suit can proceed without further delay, that the Defendant will suffer no hardship and that there has been no flagrant and culpable inactivity on the part of the Plaintiff. “Now applying the principles enunciated in the authorities, I have found that, the delay of under one year in this case may be long but it is not inordinate.”
36. In establishing whether the Plaintiff/Applicant has met the threshold to warrant the exercise of discretion to reinstate the suit, I will make reference to several authorities of which I second with:-
a. High Court of Kenya at Kakamega case of: “Catherine Kigasia – Versus - Earnest Ogesi Kivai & 4 others Civil Suit No. 20 of 2018 (2021) eKLR”.
“…….Though the Learned Judge was not convinced, I am not entirely convinced by the Plaintiff to explain her non-attendance in court as and when is required…I shall give her a second chance…”
b. In the Environment and Land Court at Nairobi “ELC Civil Suit No. 177 of 2017, Gold Lida Limited – Versus - NIC Bank Limited & 2 others (2018) eKLR” : where the Court held:-
“Blunder will continue to be made time to time and it not allow that because a mistake has been made a party should suffer the penalty of not having his case heard on merit…unless there is fraud or intention to overreach there is no error or default that cannot be put right by payment of costs.”
c. In the High of Kenya at Embu, Civil Suit No. 131 of 2009, “ Jim Rodgers Gitonga Njeru – Versus - Al Husnain Motors Ltd & 2
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1. The Ruling before this Honourable Court relates to the Notice of Motion application 4 th September, 2025. It was by the Pwani Baridi Waterways Limited – the Plaintiff/Applicant herein following the dismissal of the Applicant’s suit for non – attendance by the Plaintiff with costs as per the orders of 2 nd April, 2025 delivered by this Court.
2. The application was premised upon the provisions of Sections 1A,1B,3A of the Civil Procedure Act, Cap. 21, Orders 45 and 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law.
3. According to Counsel the failure to attend court by the Plaintiff/Applicant was not intentional but inadvertent due to transfer of the former Judge handling the matter. As a result of the dismissal the 1 st Respondent who had previously trespassed upon the suit property was now engaging in wastage of the property and was further alienating and transferring the same to third parties in collusion with the 2 nd Respondent.
4. Thus, the court was urged to set side the dismissal orders and reinstate the suit in a bid to foster the applicants guaranteed right to property as envisaged under the provision of Article 40 of the Constitution 2010.
5. Upon service, the application was opposed by Linus Chira Muya, the 1 st Respondent through filing of a Replying Affidavit dated 3 rd October, 2025. The 2 nd Respondent did not participate in the instant application.
II. The case by the Plaintiff/Applicant
a) The Plaintiff/Applicant sought for the following orders:- -
b) Spent.
c) That this Honourable Court be pleased to set aside and/or vacate the orders made on 2 nd April, 2025 dismissing the Plaintiff's suit for non - attendance together with all consequential orders.
d) That the suit herein be reinstated for hearing and determination on its merits.
e) That the costs of this application be provided for.
6. The application was premised on the grounds, testimonial facts and the averment made out under a 23 Paragraphed affidavit sworn by HELLEN MUEMA who averred as follows:-
a) She was a Co-director of the Plaintiff company.
b) Due to irreconcilable differences, together with her Co -director, they had currently instructed the Law firm of Meesrs. Muema M.M & Company Advocates to act for them. Consequently, they had withdrawn instructions earlier issued to the Law firm of Messrs. Nancy M. Kilonzo & Company.
c) Upon perusal of the court file, they had noted that this suit was sadly dismissed with costs on grounds of non-attendance on 2 nd April, 2025 by Hon. Justice Naikuni. The deponent stated that they were never aware of the dismissal as no hearing notice was served upon them.
d) According to the deponent, their former counsel was unaware of the dismissal date as she was indisposed.
e) It was apparent that this was the first appearance before the new Judge after the transfer of Justice A. Dena, which caused inadvertent confusion and non-attendance.
f) The deponent averred that she has always been diligent in pursuing this matter, as the suit land forms part of her matrimonial home where her family resided before the illegal entry by the Defendants/Respondents.
g) It was also stated that prior to dismissal, the 1 st Defendant/Respondent made several attempts to have the suit struck out on other grounds of technicality, alleging that the Company by the Plaintiff/Applicant was non-existent, in efforts to conceal his fraudulent acquisition of the land and which application was opposed vide a Replying Affidavit dated 27 th September, 2023.
h) It was alleged that suspiciously, the Plaintiff/Applicant Company's trading in the name and style of Pwani Baridi Waterways Limited disappeared from the Business Registration System (BRS) and was replaced by a fictitious entity, Pwani Barindi Waterways Limited, claimed by the 1 st Defendant/Respondent.
i) Additionally, proper further investigations revealed that the CR - 12 form of the 1 st Defendant’s/Respondent's company, Pwani Barindi Waterways Limited, allegedly lists the deponent and her Co - director as directors without their consent.
j) Meanwhile, a copy of Green card search of the suit land clearly indicated the Plaintiff/Applicant company as the legitimate registered owner of the suit land before the fraudulent transfer to the 1 st Defendant/Respondent.
k) This Honourable Court in its ruling of 17 th April, 2024 observed the irregularities in the transfer of the subject land procured in favour of the 1 st Defendant/Respondent and underscored the seriousness of the allegations raised.
l) Since the suit herein was dismissed on grounds of technicality, as demonstrated in the foregoing, there was an urgent need to reinstate the claim herein so that it could be heard and determined on merit.
m) The Plaintiff/Applicant would suffer great prejudice and irreparable harm if the dismissal was not set aside, as the Defendants/Respondents were actively wasting and alienating the suit land.
n) The deponent stated that the suit had never been heard on merits and the Plaintiff/Applicant had a strong case against the 1 st & 2 nd Defendants/Respondents.
o) There would be no prejudice suffered by the 1 st & 2 nd Defendants/Respondents if this application was allowed as the dismissal was occasioned by a mistake of Counsel, which should not be visited upon the Plaintiff/Applicant.
III. The responses by the 1 st Defendant/Respondent
7. As already indicated above, while opposing the application, the 1 st Defendant/Respondent filed a Replying Affidavit dated 3 rd October, 2025 sworn by the 1 st Defendant/Respondent himself. The deponent in response stated as follows that:
a) He had been ably informed by his advocate on record that Messrs. Muema M. M. & Co. Advocates had no “Locus Standi” to file the Application and on that ground alone the Application should be struck out and or dismissed.
b) The hearing date of 2 nd April, 2025 was given by the trial Court on 20 th September, 2024 and indeed on the same date the Plaintiff/Applicant's Advocates were duly served vide their email address hence they were well aware of the said hearing date of 2 nd April, 2025 but they decided not to attend Court.
c) It was false, misleading, and grossly dishonest for the Plaintiff/Applicant's Advocate to allege ignorance of the said hearing date of 2 nd April, 2025.
d) The contents of Paragraphs 4, 5, 6 and 7 of the Supporting Affidavit were therefore untrue, devoid of merit, and should be disregarded in limine.
e) Further, the contents of Paragraphs 8 and 9 of the supporting affidavit were mere allegations without evidentiary foundation and were calculated to improperly invite this Honourable Court to exercise its discretion in favour of a party who was plainly undeserving.
f) On the date of hearing he attended court with his witness and was ready to prosecute his defence. It was the absence of the Plaintiff/Applicant and their counsel on record that necessitated the dismissal of the suit for non-attendance. Further that the failure to attend court was deliberate and should not be entertained by the court.
g) There was indolence on the part of the Plaintiff/Applicant as it had taken almost five ( 5 ) months before filing of the instant application.
h) In conclusion, the Plaintiff/Applicant's Application of 4 th September, 2025 was a total waste of Court's time. It was misconceived, bad in Law, defective, premature, lacked merit, an abuse of the Court process and it ought to be dismissed with costs.
IV. Submissions
8. On 24 th November, 2025 while in the presence of all parties, the Honourable Court granted direction to have the Notice of Motion application dated 4 th September, 2025 be canvassed by way of written submissions.
9. Pursuant to that all parties complied. The Honourable Court reserved the Ruling on notice. Eventually, it was delivered on 30 th June, 2026 accordingly.
A. The Written Submissions by the Plaintiff/Applicant
10. The Law firm of Messrs. Muema M.M & Co Advocates filed written submissions dated 12 th December, 2025 on behalf of the Plaintiff/Applicant herein. Mr. Muema Advocate commenced the submissions by providing a brief background of the matter. He further identified three ( 3 ) issues for determination and which were;
a. Whether the Court had discretion to set aside its order dismissing the suit for non-attendance.
b. Whether the Plaintiff/Applicant had demonstrated a meritorious case deserving reinstatement.
c. Whether the 1 st & 2 nd Defendants/Respondents would suffer any prejudice if the suit was reinstated.
11. On the first issue for determination. The Learned Counsel submitted that the power to reinstate a dismissed suit by the court is derived from the provisions of Order 12 Rule 7 of the Civil Procedure Rules, 2010. That from the said provisions and in relation to the instant suit none of the circumstances show indolence, disinterest, or delay by the Applicant. It was submitted that from the Supporting Affidavit, the Plaintiff/Applicant demonstrated that her former advocates were unaware of the hearing date due to non-service of the notice and the confusion arising from the transfer of the previous trial Judge.
12. That prior to the dismissal, the record could bear witness that the Applicant was ever prudent in prosecuting the suit hereof to its finality. However due to the deponent's ill health, proper instructions were issued in pursuance for a witness substitution application a fact that was well communicated and made known to the said advocate.
13. The Learned Counsel averred that the dismissal was caused by a curable mistake by the advocate and that the Plaintiff/Applicant being the initiator of the suit was greatly jeopardized. To buttress on this point, the court was implored to be guided by the holding in the case of:- “ Ngoso Gen Contractors – Versus - Jacob Gichunge [2019] eKLR” , where non-attendance caused by counsel's failure to diarise a date was excused. Similarly, in the case of:- “ Belinda Murai & Others – Versus - Amos Wainaina [1979] KLR 278” where the Courts held that litigants should not suffer for Counsel's mistake "an error is a human mistake, not a deliberate act" .
14. On whether the Applicant has demonstrated a meritorious case deserving of reinstatement. The Learned Counsel asserted that the suit property was the matrimonial home of one of the directors. However, it had been transferred illegally to the 1 st Defendant/Respondent giving rise to this suit. That the Court vide its ruling of 17 th April, 2024, acknowledged irregularities on the face of record in the transfer and directed scrutiny of the companies’ registry by noting the importance of the director's input during hearing of the suit. Therefore, it was necessary to hear the matter conclusively for the issue of ownership and the alleged illegal transfer to be determined with finality.
15. On the third issue for determination. The Learned Counsel submitted by stating that reinstatement of the suit would ensure that the Plaintiff/Applicant never suffered any prejudice at the hands of the 1 st & 2 nd Defendants/Respondents. The court was urged to allow the application as prayed.
B. The Written Submissions by the 1 st Defendant/Respondent
16. The 1 st Defendant/Respondent’s submissions dated 31 st December 2025 were filed by the Law firm of Messrs. Mogaka Omwenga & Mabeya Advocates. Mr. Omwenga Advocate first submitted that the Plaintiff/Applicant’s Counsel on record was not properly on record pursuant to the provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010. This was due to the fact that they had entered appearance after Judgement of the matter and hence without obtaining the leave of court as required by law.
17. It was also submitted that no good grounds had been shown by the Plaintiff/Applicant to aid the court in exercising its discretion in dismissing the matter. That the application for reinstatement had been filed five ( 5 ) months after the dismissal and which delay was referred to as being inordinate. The Learned Counsel referred to several authorities and urged the court to be guided by the same in dismissing the application.
C. The Further written Submissions by the Plaintiff/Applicant.
18. The Plaintiff/Applicant filed further submissions dated 16 th February, 2026 mainly on the issue of ‘ locus standi ” on the part of the Plaintiff/Applicant’s Counsel in filing the instant application and being on record. It was submitted that the provision of Order 9 Rule 9 of the Civil Procedure Rules, 2010 which governs change of advocates after judgment. However, the operative word is "Judgment." That dismissal for non-attendance at a preliminary stage never amounted to a Judgment on merit. It never determined the substantive rights of the parties. That the issue was a procedural technicality that did not go to the substance of the suit and hence ought to be disregarded by the court.
V. Analysis and Determination
19. The Honourable Court has keenly considered all the filed pleadings, the documentary evidence adduced, the written submissions, the cited authorities, the relevant provisions of the Constitution of Kenya 2020 and the Statutes herein.
20. For the Honorable Court to arrive at an informed, reasonable, just and fair decision, there are three (3) salient issues to be determined. These are: -
a) Whether the Applicant’s Counsel is properly on record
b) Whether the Plaintiff/Applicant has met the threshold for setting aside order of dismissing the suit herein
c) Who shall bear the costs of the application.
ISSUE No. a). Whether the Applicant’s Counsel is properly on record
21. Under this sub heading, the court will interrogate whether the Law firm of Messrs. Muema M.M & Co Advocates is properly on record having taken over the matter from the previous Law firm of Messrs. Nancy M. Kilonzo & Company Advocates without leave of court. As a preliminary issue of law, the 1 st Defendant/Respondent has emphatically submitted that the Plaintiff/Applicant’s Counsel is not properly on record for non – adherence to the provision of Order 9 Rule 9 of the Civil Procedure Rules, 2010 which is couched in mandatory terms. As such the application ought to be dismissed in its entirety.
22. The Plaintiff/Applicant’s case is that the dismissal of the suit herein was out of their control as the whole court process was being managed by its counsel on record. The deponent in the application to reinstate the suit stated that at the time of dismissal she was unwell and was infact unaware of the hearing date and the progress of the matter. These assertions were disparaged by the 1 st Defendant/Respondent who stated that the law was clear on what transpires when a change of advocate is made after Judgement.
23. Thus, it is imperative that the Honourable Court as a matter of precedence deal on this significant issue of law. The provision of Order 9 Rule 9 of the Civil Procedure Rules, 2010 (CPR) provides that:
“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 ca se may be.”
24. The High Court has expansively deliberated on this issue. I have come across a myriad of authorities on the failure to seek leave to come on record after judgement. There happens to be two schools of thought on the subject matter. On the one hand, the holding that lack of leave was a fatal mistake, while the other, the courts have treated the issue as a mere technicality that ought not to lead to dismissal of a suit. Muchelule, J in the case of:- “ John Langat – Versus - Kipkemoi Terer & 2 others [2013] eKLR” stated that:
“There was no application made to change advocates. In the Replying Affidavit, the Appellant swore that there was a consent entered into between his previous advocates and his present advocate to effect change. This was done following the Judgement. He annexed the consent. There is no evidence that the Respondents were put in the picture. But more important, the consent could not effect the change of advocates “without an order of the court.” No such order was sought or obtained. It follows, and I agree with Mr. Theuri and Mr. Nyamweya, that Anyoka & Associates are not properly on record for the appellant, and therefore the appeal and the application are incompetent.”
25. Similar position is found in the case of:- “ Florence Hare Mkaha – Versus - Pwani Tawakal Mini Coach & another [2014] eKLR; Mombasa H.C.C.C. No. 85 of 2010” wherein Mary Kasango, J held that:-
“16. The question is; was the execution validly carried out on behalf of the Plaintiff? There are glaring anomalies in respect of the representation of the Plaintiff. As clearly set out above the Plaintiff was represented by Pandya & Talati Advocate up and until judgment was entered in her favour on 31 st July, 2012. Once judgment was entered the provisions of Order 9 Rule 9 had to be complied with if the Plaintiff required to change the advocates representing her. This was not the case. She was variously represented by Shikely Advocate, who filed the submissions in support of the Plaintiff’s Bill of Costs, and was represented by Kinyua Njagi & Co. Advocates through the execution of the decree stage. In both those occasions the two advocates did not obtain an order of the court to take over the conduct of Plaintiff’s case. Much more Shikely Advocate was not properly on record to enable him consent for Kinyua Njagi & Co. Advocates to conduct the Plaintiff’s case.”
26. However, a contrary view – point has been taken over the same subject matter. Mutungi, J treated the failure to comply with the provision of Order 9 Rule 9 of the Civil Procedure Rules, 2010 as a mere technicality and held in the case of:- “ Ngitimbe Hudson Nyanumba – Versus - Thomas Ongondo [2018] eKLR held” that:
“19. The appellant’s Notice of Motion dated 8 th July 2013 was predicated on the view that the firm of Nyamori Nyasimi came on record for the respondent after judgment without leave of the court and therefore was irregular, null and void and all orders emanating and/or ensuing thereafter were a nullity and ought to be cancelled. The appellant had every opportunity to challenge the appointment but did not do so. Instead the appellant participated in the proceedings and did not raise any issue regarding the irregularity of the Notice of Change of Advocate that placed Nyamori Nyasimi advocate on record. One may ask what injustice was occasioned to the appellant by the appointment of Nyamori Nyasimi advocate after judgment allegedly without leave? I discern none, the appellant continued to participate in the proceedings without raising any objection. The idea/objective behind amending the Civil Procedure Rules to provide that where judgment had been entered any change of advocate was to be with the leave of the court was essentially for the protection of the advocates to safeguard their fees from their clients. The amendment was aimed at preventing mischief whereafter an advocate worked tirelessly for a client upto obtaining a judgment, the advocate is not debriefed by merely another advocate filing a notice of change or the client filing a notice to act in person so that execution of the decree is by another advocate who did not participate in the trial and/or by the client directly with the object of denying the advocate his fees or costs.
20. Although I agree with the learned magistrate that there was an inordinate delay in bringing this application challenging the notice of change of advocate without leave, my view is that no leave was required as at the time and that even if it was required I would nevertheless not have been persuaded to annul the subsequent and consequential orders from the date the notice of change was filed. The appellant suffered no prejudice at all by reason of such change of advocate. The appellant participated and/or was not prevented from participating in the proceedings and there was no miscarriage of justice. The court is enjoined under Sections 1A and 1B of the Civil Procedure Act, Sections 3(1) and 19(1) of the Environment and Land Court Act and Article 159 2(d) to administer justice expeditiously and justly and without undue regard to technicalities of procedure and it is my view that this is such a case where the court would have been entitled to disregard the strict rules of procedure in order to do substantive justice.”
27. Legally speaking, the essence of the provisions of Order 9 Rule 9 of the Civil Procedure Rules is to safeguard the works of an Advocate who has proceeded with a matter to the end only to be short-changed and replaced with another advocate after Judgement. By and large, this Honourable Court strongly holds that the provision of Order 9 Rule 9 of the Rules is couched in mandatory terms and has to be adhered with. The leave of Court is compulsory as it is not a procedural technicalities at all as envisaged under the provision of Article 159 ( 2 ) ( d ) of the Constitution of Kenya, 2010.
28. However, the instant case the facts are distinct. Ideally and from assessment of the circumstances of this case, the matter is yet to be heard conclusively but was dismissed for non – attendance under the provision of Order 12 Rule 2 of the Rules. The Plaintiff/Applicant states that the dismissal was occasioned by her Counsel on record failure to turn up in court. In my view, what is happening in this scenario is the Plaintiff/Applicant exercising her right to seek representation as provided for under Article 50 ( 2 ) ( g ) and ( h ) of the Constitution that they feel is proper and bound to safeguard their interest. To this very end, I am in full agreement with the dictum by Mutungi, J in “ Ngitimbe Hudson Nyanumb a (Supra)” and it is my view that counsel on record be allowed to proceed in the interest of justice as this is an issue of procedural technicality, no prejudice is to be suffered by the Respondents in the instant case due to the change in advocate.
ISSUE No c). Whether the Plaintiff/Applicant has met the threshold for setting aside order of dismissing the suit herein
29. The provision of Order 12 Rule 7 of the Civil Procedure Rules, 2010 empowers the court to set aside an order of dismissal and provides 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.”
30. The provision of Order 51 Rule 15 of the Civil Procedure Rules grants the court jurisdiction to set aside an order made ex - parte. The principles to set aside ex parte orders are well settled. This court has unfettered discretion to set aside ex parte orders, on terms that are just, fair and the discretion clothed on the court must be exercised judiciously based on sufficient cause and not whimsically.
31. The Plaintiff/Applicant informed this court through the affidavit on record in support of the application that she was keen on proceeding with the case to its logical conclusion. That the dismissal of the suit was occasioned by her then counsel on record indolence and was not her on doing. That the said actions by her then advocate necessitated the change of advocate witnessed in the application. The mistakes of counsel should therefore not be visited upon a client. The 1 st Defendant/Respondent’s rejoinder through its replies and submissions can be summed in one sentence, that a case belongs to the litigant and not their advocate.
32. The 1 st Defendant/Respondent’s notion has been echoed in a number of decisions by the court. See the case of:- “ Simion Waitim Kimani & Three others – Versus - Equity Building Society (2010) eKLR” where Koome J [CJ] in Paragraphs 4 and 5 held:-
“The courts have discretion generally to reinstate a suit which is dismissed for non-attendance but in all matters involving the exercise of the courts discretion, it must be exercised judiciously based on facts and law. The party seeking to reinstate the suit must also demonstrate good faith and the application should be brought to court without unreasonable delay. This suit was filed on 12 th March, 2002 and since 29 th November, 2004 no steps were taken to prosecute it. It is the court on its own motion that issued the notice to show cause why the suit should not be dismissed for want of prosecution. The Plaintiff now claims that his lawyer who was on record Messrs Cerere Mwangi & Co. left the country to settle in the United States in the year 2004. The Plaintiff who instituted this suit never enquired about their lawyer or their matter for the last 6 years.”
Even if this court were to exercise its discretion in favour of the Plaintiff that would be against the principle of equity which does not aid the indolent but aids the vigilant. Secondly, this suit was dismissed by the court on its own motion pursuant to the provisions of Order 16. The notices were sent. No cause was shown and the court dismissed the suit for want of prosecution. According to rule 6 of order 16, if the suit is dismissed when no steps were taken for a period of three years the plaintiff can only bring a fresh suit subject to the Law of Limitation”
33. Additionally, on the same subject matter, I seek refuge from the case of: “ Alice Mumbi Nganga – Versus - Danson Chege Nganga & Another (2006) eKLR” by Kimaru J where he states:-
“This court has unfettered discretion to set aside any order which was entered ex - parte. This discretion however, has to be exercised judicially. The applicant must satisfy this court that she has good reasons why she failed to attend court when the said application for dismissal was heard and determined in her absence. In the first place, she cannot blame her counsel who was then on record for failing to attend court when the said application was listed for hearing. This court has ruled in several cases that a civil case once filed, is owned by a litigant not his advocate. It behoves the litigant to always follow up his case and check its progress. He cannot come to court and say that he was let down by his advocate when a decision adverse to him is made by the court due to lack of diligence on the part of his advocate. I think it has been ruled by the Court of Appeal that where an advocate fails to prosecute a case to the satisfaction of his client then such a litigant has an option of suing such an advocate for professional negligence. The mistake of counsel will not, per se, make this court to exercise its discretion in favour of an aggrieved litigant.”
34. In the case of: “ Peter Kinyari Kihumba – Versus - Gladys Wanjiru Migwi & Another C.A Civil Application No. NAI 121 of 2005 (6/05NYR) (unreported)” Waki J.A, held at page 3 that:-
''With respect, l think the applicant and his counsel adopted a casual attitude to this litigation and they have no one but themselves to blame if no further indulgence is extended to them. The plea they made is that this is a land matter, but the simple answer is that even in land matters there must be an end to litigation. It is for the reason that it was a land matter that it should have been handled with the sensitivity and diligence that entails such matters. Instead the applicant and his advises exhibited undesirable nonchalance, which l am not inclined to countenance''
35. Thus, it is now a well settled principle that a court should be slow to dismiss a suit for want of prosecution unless where interests of justice dictate otherwise. The rationale to this principle is that every party must be accorded the right to be heard pursuant to constitutional dictates of the non-derogable right to fair hearing. See the case of:- “ Naftali Opondo Onyango – Versus - National Bank of Kenya Ltd [2005] eKLR” , that:-
“However, in deciding whether or not to dismiss a suit under rule 6 it is my view that a court will be slow to make an order if it is satisfied that the hearing of the suit can proceed without further delay, that the Defendant will suffer no hardship and that there has been no flagrant and culpable inactivity on the part of the Plaintiff. “Now applying the principles enunciated in the authorities, I have found that, the delay of under one year in this case may be long but it is not inordinate.”
36. In establishing whether the Plaintiff/Applicant has met the threshold to warrant the exercise of discretion to reinstate the suit, I will make reference to several authorities of which I second with:-
a. High Court of Kenya at Kakamega case of: “Catherine Kigasia – Versus - Earnest Ogesi Kivai & 4 others Civil Suit No. 20 of 2018 (2021) eKLR”.
“…….Though the Learned Judge was not convinced, I am not entirely convinced by the Plaintiff to explain her non-attendance in court as and when is required…I shall give her a second chance…”
b. In the Environment and Land Court at Nairobi “ELC Civil Suit No. 177 of 2017, Gold Lida Limited – Versus - NIC Bank Limited & 2 others (2018) eKLR” : where the Court held:-
“Blunder will continue to be made time to time and it not allow that because a mistake has been made a party should suffer the penalty of not having his case heard on merit…unless there is fraud or intention to overreach there is no error or default that cannot be put right by payment of costs.”
c. In the High of Kenya at Embu, Civil Suit No. 131 of 2009, “ Jim Rodgers Gitonga Njeru – Versus - Al Husnain Motors Ltd & 2
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