Mwaruwa v Jembe & another (Environment and Land Case E043 of 2023) [2026] KEELC 3271 (KLR) (20 April 2026) (Ruling) Neutral citation: [2026] KEELC 3271 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MALINDI ENVIRONMENT AND LAND CASE E043 OF 2023 FM NJOROGE, J APRIL 20, 2026 BETWEEN RAPHAEL KENGA MWARUWA ............................................................ PLAINTIFF AND TSUMA JEMBE & ANOTHER ............................................................. DEFENDANT RULING 1. In the application dated 8th October 2025, this court is being asked to set aside its orders made on 29th September 2025 dismissing the suit for want of prosecution. The application is supported by the sworn afidavit of the 10th plaintifi. 2. The grounds upon which the application is brought are that the delay in setting down the matter for hearing was not deliberate but also occasioned by circumstances beyond the plaintifi’s control in that the counsel who had conduct of the matter was employed by the Director of Public Prosecutions and ceased private practice without informing the plaintifis; that the plaintifis were unaware that their matter was not being actively followed up. When they realized that there was lapse, the plaintifis promptly instructed a new advocate on the 28th September 2025 who appeared virtually on the date that the matter was coming up for hearing and, being new, sought 7 days to acquaint himself with the matter, but the court nevertheless dismissed the suit for want of prosecution. 3. The application is opposed by the second respondent who, through his counsel Gabriel Ojwang, swore an afidavit dated 5th November 2025 in response. The deponent states that the application has been filed by a firm of advocate which is not properly on record for intentionally failing to disclose which firm of advocates it is replacing, and having not served the firm as required. Noting that the suit was filed by the firm of Mike Atieno and company advocates, he states that the firm is not comprised of a sole practitioner; those two advocates have appeared in this matter, that is, Mike Atieno on 30th January 2024 and Kazungu Evans on 29th April 2024 and 3rd June 2024; there being two counsels in that firm, if one joined the DPP’s, ofice then the other should have proceeded with the matter. No evidence https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3271/eng@2026-04-20 1
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however has been placed before Court to confirm that their named advocate has joined the Ofice of the DPP, or when he did so; that data search in the search engine shows that Mike Atieno and Kazungu Evans are still working at Mike Atieno and company; that the delay in attending court for a whole year on the part of their counsel shows the disinterest on the part of the plaintifis in prosecuting the matter. Mr Ojwang prayed that the motion be dismissed. 4. There is a preliminary objection that has been raised by Mr Ojwang which appears not to have been addressed by the applicant. At paragraph 3 of his replying afidavit, he states that the firm of advocates is not properly on record, that it does not indicate which firm of advocates it is replacing, and whether it has served them. 5. The suit having been dismissed, there is deemed to be a judgment against the plaintifis, and consequently, the provisions of Order 9 Rule 9 kick in. Any new advocate who comes into the matter must make an application before Court for an order allowing him to take up the matter and represent a party. 6. Before the firm of T.A. Chacha and Associates, advocates came on the record and filed their present application, Mike Atieno and company were the advocates for the Plaintifis. No leave of court having been sought for them to come onto the record and represent the plaintifis, their purported representation of the applicants in the present matter is in violation of the provisions of Order 9 Rule 9. 7. Consequently, the application dated 8th October 2025 is incompetent and it is here by struck out with no orders to costs. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 20TH APRIL 2026. MWANGI NJOROGE, JUDGE, ELC, MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3271/eng@2026-04-20 2
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