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ELCAllowedELC No. 3 of 2012 (Originating Summons dated 5th December, 2012) - Notice of Motion dated 7th November, 2024

Archer & another v Archer & 3 others (Environment and Land Case 345 of 2017) [2026] KEELC 1492 (KLR)

Environment and Land Court
13 March 2026
9,637 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a deceased plaintiff's estate to continue a long-running land case, ruling that procedural mistakes should not defeat substantive justice.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Mombasa, delivered by L. L. Naikuni, J, determined a Notice of Motion dated 7th November 2024 by the 2nd Plaintiff, Linda Hamilton Archer, executrix of the estate of the deceased 1st Plaintiff, James Howard Archer. The application sought leave for Harit Sheth Advocates to come on record post-judgment in place of Bryant & Associates, extension of time to file a substitution application, and substitution of the deceased 1st Plaintiff with his executrix. The Defendants opposed, arguing the incoming firm lacked locus standi absent a court order under Order 9 Rule 9, that the suit had abated by operation of law on 14th March 2024 (one year after the 1st Plaintiff's death) so that revival had to precede substitution, and that a pending review application before the Court of Appeal rendered these proceedings duplicative. The court framed five issues. On representation, it held that a consent alone cannot effect a post-judgment change of advocates without a court order, but the defect was curable within the omnibus application containing a prayer for leave, and it adopted the consent as an order of the Court. On abatement, although it initially reasoned the suit had automatically abated when the first, timely substitution application was struck out on a technicality, it ultimately held, relying on Said Sweilem Gheithan Saanum and Article 159(2)(d), that the suit did not abate since the Applicants had acted within time and the defect was procedural. Finding minimal delay, no prejudice to the Defendants, and the need to progress the taking of accounts remitted by the Court of Appeal in Civil Appeal 39 of 2020, the court allowed the application, extended time, substituted the executrix as 1st Plaintiff, and directed amendment of the plaint and pre-trial directions. Costs were left in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Law firm of Messrs. Harit Sheth Advocates were properly on record post-Judgment
  2. 2.Whether the suit abated by operation of law
  3. 3.Whether the Applicant was entitled to extension of time and substitution
  4. 4.Whether the application was merited in law and equity
  5. 5.Who bears the Costs of the Notice of Motion application dated 7th November, 2024

Key legal issues

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01

Whether Harit Sheth Advocates were properly on record post-judgment

Holding

The firm was not properly on record absent a court order, but the defect was curable within the omnibus application which included a prayer for leave to come on record.

Reasoning

Order 9 Rule 9 mandates that a change of advocates after judgment shall not be effected without an order of the court. The consent from Bryant & Associates had not been adopted as an order of the Court and no separate application for leave had been filed. However, since the present motion included a prayer for leave to come on record, the court held the defect curable within the same application, relying on Lalji Bhimji Sanghani Builders, and determined the prayer on its merits.

p. 15
02

Whether the suit abated by operation of law

Holding

The court found that the suit did not abate, because the Applicants had filed a substitution application within time which was struck out on a procedural technicality, and the delay in refiling was minimal.

Reasoning

Although Order 24 Rule 3(2) imposes a strict one-year deadline and the court initially reasoned that the striking out of the first application meant the suit abated automatically, the court ultimately relied on Said Sweilem Gheithan Saanum, holding that a timely but defective application can be a basis for extension of time. Guided by Article 159(2)(d), the court found the Applicants acted within time initially, the defect was procedural, and the suit did not abate.

p. 16
03

Whether the Applicant was entitled to extension of time and substitution

Holding

Yes. Extension of time was granted and the deceased 1st Plaintiff was substituted with his executrix.

Reasoning

The court exercised its discretion under Order 50 Rules 6 & 7 and Section 95 of the Civil Procedure Act, applying the principles in Nicholas Kiptoo Arap Korir Salat. The delay between the striking out (22nd October 2024) and the fresh application (7th November 2024) was minimal; the procedural defect was remedied by obtaining the correct consent; and the Defendants demonstrated no prejudice not compensable by costs. Substitution was necessary to progress the post-appeal taking of accounts ordered by the Court of Appeal.

p. 17
04

Costs of the application

Holding

Costs were left in the cause rather than awarded to any party outright.

Reasoning

The court recited the principle that costs follow the event under Section 27(1) of the Civil Procedure Act, citing Harun Mutwiri, Kenya Union of Commercial Food and Allied Workers and Hussein Muhumed Sirat, but in the circumstances of the application reserved its discretion and ordered costs in the cause.

p. 17

Legal principles established

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  • A consent between outgoing and incoming advocates is a necessary first step but is not sufficient to effect a change of advocates post-judgment; a formal court order is indispensable.
  • The defect of failing to first obtain leave to come on record post-judgment can be cured within an omnibus application containing a prayer for leave, in the interests of justice.
  • Extension of time is not a right but a judicial discretion exercised to avoid injustice.

Court orders

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  1. 1.Notice of Motion Application dated 7th November, 2024 found to have merit and allowed with costs to be in the cause
  2. 2.Leave granted to the firm of Harit Sheth Advocates to come on record for the 1st Plaintiff in place of Bryant & Associates Advocates in compliance with Order 9 Rule 9 of the Civil Procedure Rules; the consent dated 23rd October 2024 adopted as an order of the Court
  3. 3.Time extended for filing of the substitution application
  4. 4.The deceased 1st Plaintiff, James Howard Archer, substituted with Linda Hamilton Archer, the executrix of his estate, as the 1st Plaintiff
  5. 5.Plaintiff to amend and serve the Amended Plaint within 14 days
  6. 6.Upon service of the Amended Plaint, Defendants granted 21 days leave to comply with Orders 7 and 11 of the Civil Procedure Rules, 2010
  7. 7.Pre-Trial Conference to be conducted in accordance with Order 11 and further directions before Hon. Justice Olola, ELC No. 3, Mombasa
  8. 8.Costs of the application to be in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 3A and 95 of the Civil Procedure Act, Cap. 21; Order 24 Rules 3 and 7, Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the Notice of Motion Application dated 7th November, 2024 be and is hereby found to have merit and the same is allowed with costs to be in the cause.
p. 17final orders - allowance of application
That Leave be and is hereby granted to the firm of Harit Sheth Advocates to come on record for the 1st Plaintiff in place of Bryant & Associates Advocates in compliance with Order 9 Rule 9 of the Civil Procedure Rules. The consent dated 23rd October 2024 is hereby adopted as an order of the Court.
p. 17final orders - leave to come on record and adoption of consent
That this Honourable Court be and is hereby pleased to substitute the deceased 1st Plaintiff, James Howard Archer, with Linda Hamilton Archer, the executrix of his estate, as the 1st Plaintiff.
p. 18final orders - substitution of deceased plaintiff
In the interests of justice, and guided by the provision of Article 159(2)(d) of the Constitution, I find that the suit did not abate.
p. 16abatement - finding that the suit did not abate
The mandatory language “shall not be effected without an order of the court” means that a formal court order is the indispensable final step.
Order 9 Rule 9 - change of advocates post-judgment

Issues in the judgment

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material

Internal contradiction on abatement: the court first reasons that the suit abated automatically on 14th March 2024, then finds it did not abate.

material

Internal contradiction: the court simultaneously endorses the Mungole sequence (extension first, then revival, then substitution) yet grants substitution without a revival application.

minor

Ruling date appears anomalous: delivered 13th March 2026 in a matter involving a November 2024 application, while the text also references an earlier ruling date of 22nd October '2004' (apparently a typographical error for 2024).

minor

Pre-trial conference date given as 14th May, 2016, an obvious typographical error given the application is dated 2024.

minor

The judgment inconsistently names the Njogu case as both 'James Ndonyu Njogu' and 'James Ndungu Njogu'.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Archer & another v Archer & 3 others (Environment and Land Case 345 of 2017) [2026] KEELC 1492 (KLR)", Case Analysis (2026). ELC No. 3 of 2012 (Originating Summons dated 5th December, 2012) - Notice of Motion dated 7th November, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1492/eng@2026-03-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.