https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5302

 **THE REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELC CASE NO. 76 OF 2011** **ANASTACIA WAMBUI NGARI....................................................PLAINTIFF** **-VERSUS-** **BONIFACE MAKARI MIANO..................................................DEFENDANT** **AND** **MARY WANGARI MAKARI...................................................RESPONDENT** **AND** **BEATRICE NJERI MAKARI.........................................................APPLICANT** **RULING** 1. The Applicant herein filed an application under a Notice of Motion dated 15th October 2024, seeking the following orders: 2. **That this Honourable Court may be pleased to revive the suit.** 3. **It is respectfully requested that this Honourable Court be pleased to substitute Boniface Makari Miano (now deceased) with Mary Wangari Makari in her capacity as the Legal Representative of the estate of Boniface Makari Miano.** 4. **That this Honourable Court may be pleased to set aside the orders issued on 17th June 2014 and/or to extend the timeframe within which the deceased Defendant should have been substituted.** 5. The application is supported by the Applicant's affidavit, in which the Applicant deposed that the Defendant herein, Boniface Makari Miano (Deceased), died on 17th December 2020, and that Mary Wangari Makari, the Respondent named herein, is the Legal representative of the Deceased Defendant. 6. That the said Respondent was granted authority pursuant to the grant of letters of administration intestate issued on 21st August 2023, and was therefore vested with authority to defend the suit. 7. The Applicant deposed that in July 1978 she was married to the deceased defendant, Boniface Makari Miano, under Kikuyu Customary law, and that they settled on a parcel of land in Karatina. Sometime in 1979, her husband sold the land and chased her away, after which she relocated and settled on L.R. Nyandarua/Mbuyu/62. 8. That the said Boniface Makari Miano was the initial owner of the said parcel of land, but he has never possessed or occupied it, and by the time he settled, they had temporarily separated. 9. The Applicant deposes that since 1980 she has been in actual and physical possession of the said parcel of land and has carried out extensive developments on it. 10. The Applicant had earlier filed an application dated 14th February 2023, seeking to be joined as the 2nd Defendant, a stay of execution of the orders dated 17th June 2014, setting aside the said order, and leave to file her statement of Defence. She deposes that she was unaware of the existence of this suit and the orders issued, and learned of them on 13th May 2022, when she was served with the Defendant's further list of documents in **Nyahururu ELC No. 4 of 2020(OS).** 11. The Applicant is apprehensive that she will be denied the right to be heard and will suffer irreparable loss, having lost a valuable parcel of land to which she is rightly, lawfully, and legally entitled. 12. She also argues that there is no prejudice or damage that the Respondent will suffer if this application is allowed, the suit is revived, and the Legal Representative is substituted, thereby paving the way for the hearing and determination of the Application dated 14th February 2023. **The Plaintiff’s replying affidavit** 1. The Plaintiff herein filed a replying affidavit in response to the instant application, and deposed that this matter had already been heard and determined against the deceased Defendant, with judgment delivered on 28th June 2013. At the time of delivery of judgment, the deceased defendant was still alive, a fact which has been confirmed by the Applicant at paragraph 2 of the affidavit in support of the Application. 2. That since the delivery of the Judgment in 2013, the deceased never appealed against the said Judgment nor did he seek to have it set aside. 3. The Plaintiff contends that there has been inordinate delay by the Applicant in filing this application, as the deceased died on 17th December 2020, yet the application was filed on 15th October 2024, 3 years after the deceased Defendant's death. 4. That, as advised by her advocate on record, the instant application is fatally defective because it contravenes the provisions of Order 24 Rule 4(3) of the Civil Procedure Rules. 5. She added that the Applicant seeks to be substituted to prosecute the application dated 14th February 2023, yet she is a stranger to that application and lacks locus standi to file the present application, as she is a stranger to these proceedings. 6. She therefore contends that it is in the interest of justice that this application be dismissed with costs to the Plaintiff/Respondent. 7. Parties filed written submissions, which the Court has duly read and considered. **Analysis and Determination** 1. The Applicant has filed the instant application seeking revival of the suit herein, following the death of the Defendant herein, her former husband, on 17th December 2020. 2. The Applicant argues that, despite being aware of the Applicant's possession of the suit land, the Plaintiff failed to enjoin her as a party to this suit. She submits that, against this background, she filed the application dated 14th February 2023 seeking to be enjoined in the suit and to have the ex parte judgement set aside, but at that time the defendant was already deceased. 3. The Applicant herein contends that she has been living on the suit property, that she was unaware of it, and that she seeks to have the judgment set aside. 4. Order 24, Rule 4 of the Civil Procedure Rules provides that: ***“(1) Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.*** ***(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.*** ***(3) Where within one year no application is made under subrule (1), the suit shall abate as against the deceased defendant.”*** 1. However, I note that judgment in this suit was delivered on 28th June 2013, while the Defendant was alive, and therefore the suit did not abate upon his death. The Court decreed that the Defendant deliver vacant possession of the suit property to the Plaintiff pursuant to their sale agreement. In my view, there is nothing to revive, as the suit has already been heard and conclusively determined. Neither party has filed an appeal, and consequently, there is no suit to revive. 2. The High Court (Njuguna J) in the case of **Samuel Matheri Githen v Lawrence Mwaura [2017] KEHC 2456 (KLR)** held that: ***“It follows that in this case where the deceased Plaintiff died after judgment had already been given, the provision of Order 24 Rule 3 did not apply. It is only a suit which is yet to be determined that can abate. Judgment had already been issued hence there is no suit which is pending determination.”*** 1. It is also my view that the Applicant's delay in seeking to be joined to this case has been inordinate. She stated that she had earlier filed an application dated 14th February 2023, but now only seeks substitution of a party that is not even an Applicant. 2. The application lacks merit and is dismissed with costs. **Dated, signed, and delivered virtually at Nyeri on this 6th day of August 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Ms Rotich H/B for Mr Komu for the Interested Party** **Denis - Court Assistant** **In the Absence of:** **Mr Ashioya for the Respondent**