Kilonzo & another (Suing as Personal and Legal Representative of the Estate of John Kyenze Kilonzo – Deceased) v Rousalis & 4 others (Environment and Land Case Civil Suit 67 of 2020) [2026] KEELC 3502 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the law firm of Ms. Victor Anyango & Co. Advocates is properly on record
- 2.Whether the plaintiff has met the legal threshold to warrant the reinstatement of the suit
Key legal issues
#Whether the incoming law firm was properly on record after dismissal of the suit
The notice of change of advocates dated 19 June 2025 was improper and incompetent; post-dismissal changes of advocate require an application with notice or a consent under Order 9 Rule 9, so the motion was incompetent.
Order 9 Rule 9 governs changes of advocate after judgment. The court adopted the settled position that a dismissal for want of prosecution or non-attendance amounts to a judgment. Because the suit had been dismissed on 11 March 2024, the incoming firm could not use a notice of change under Order 9 Rule 5; it needed either a formal application with notice to all parties or the written consent of the outgoing firm, neither of which was obtained.
Whether the plaintiff met the threshold for reinstatement of a suit dismissed for want of prosecution
No. The plaintiff failed to substantiate a sufficient excuse for the delay, fabricated his account of perusing the court file and of continued communication with counsel, and the defendants would be prejudiced.
Applying Shah v Mbogo and Ivita v Kyumbu, the discretion to set aside ex parte decisions exists to avoid injustice from accident, inadvertence or excusable mistake, not to reward deliberate obstruction. The plaintiff bore the onus of justifying the delay of over a year. He could not show when he perused the file, produced no correspondence with his former advocate, and his collusion allegation was unsupported; indeed the 2nd and 3rd defendants' counsel attended court on the dismissal date. He was the architect of his own misfortune.
Legal principles established
#- A dismissal of a suit for non-attendance or want of prosecution constitutes a judgment, so any change of advocate thereafter is governed by Order 9 Rule 9 of the Civil Procedure Rules
- A party whose suit has been dismissed cannot come on record through a fresh advocate by a mere notice of change of advocates without leave of the court or consent of the outgoing advocate
Court orders
#- 1.The notice of motion dated 18 June 2025 is found incompetent and is struck out
- 2.The plaintiff, the application being unopposed, will bear his own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction under Section 3A of the Civil Procedure Act and Order 12 Rule 7 and Order 51 of the Civil Procedure Rules
Relief refused
#Setting aside the ex parte orders of 11 March 2024 dismissing the suit for want of prosecution and reinstatement of the suit
The application offended Order 9 Rule 9 of the Civil Procedure Rules as the incoming advocate came on record by a notice of change rather than by application or consent, and on the merits the plaintiff fabricated excuses for the failure to attend court and the defendants would be prejudiced by reinstatement
Costs
Since the application was unopposed, the plaintiff will bear his own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Guided by our constitutional principles, the law and established precedents, this court finds, in conclusion, that the notice of motion dated 18 June 2025 is incompetent. It is struck out, and, since it is unopposed, the plaintiff will bear his own costs.
it is now settled in various judicial decisions, with which this court concurs, that a dismissal of a suit for non-attendance of the plaintiff or for want of prosecution constitutes a judgment in that suit.
This discretion (to set aside ex parte Court decisions) is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.
So the test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay.
Issues in the judgment
#The ruling never expressly names the court; the station is given as Machakos and the court is inferred from the coram and the KEELC/KEHC citations.
The case number, the names of the defendants and the exact date of the hearing (given as 26 June 2026, which post-dates delivery on 9 June 2026) are inconsistent or missing in the judgment.
The text contains frequent OCR-type character corruption (e.g. 'plaintifi', 'sufier', 'ofiends', 'efiected'), so verbatim quotes have been reproduced as printed where possible.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kilonzo & another (Suing as Personal and Legal Representative of the Estate of John Kyenze Kilonzo – Deceased) v Rousalis & 4 others (Environment and Land Case Civil Suit 67 of 2020) [2026] KEELC 3502 (KLR)", Case Analysis (2026). not_stated_in_ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3502/eng@2026-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.