https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4992

# REPUBLIC OF KENYA ## IN THE ENVIRONMENT AND LAND COURT AT KISUMU ### **ELC 87 OF 2017** **PHOEBE MUGA ASIYO (holder of a power of attorney donated by JUNI AWITI ASIYO)……………………………………………..1ST PLAINTIFF** **VERSUS** **JOSEPH NYAKWA………………………………………1ST DEFENDANT GORDON NYAKWA ……………………………………2ND DEFENDANT** ROSELYNE KWAMBOKA.............................................3RD DEFENDANT AND DANIEL OTIENO AGOLA………………………………..APPLICANT **RULING** ## Background of the Application [1] The Plaintiff, the Late Phoebe Muga Asiyo, instituted this suit in her capacity as the Donee of a Power of Attorney granted by her daughter, Juni Awiti Asiyo, seeking relief against Joseph Nyakwa Ojwang, Gordon Nyakwa, and Roselyne Kwamboka, the 1st, 2nd and 3rd Defendants, respectively. Previously, the Applicant sought to be formally joined in the suit on the basis that the land identified as Kisumu/Kanyakwar/385, together with the surrounding plots 348 and 469, rightfully belonged to the estate of his late father, Gordon Mark Agol. The Applicant further contended that the National Land Commission (NLC) had rendered a determination validating his proprietary claims to the land. [2] By a ruling delivered on 23rd October 2025, E. Asati, J, found that the Applicant failed to demonstrate an identifiable personal interest in the suit lands, nor did he establish a nexus between his claimed parcel (Kisumu/Kanyakwar/385) and the Plaintiff’s parcels (L.R. 15037 series). Following the dismissal of the joinder application, the Plaintiff's advocates on record, Messrs. Otieno, Yogo, Ojuro & Company Advocates, filed a Notice to Show Cause and a Party and Party Bill of Costs against the Interested Party, seeking the taxation and recovery of costs amounting to Kshs. 114,850. [3] This triggered the current application where the Applicant moved the Court via a Notice of Motion dated 5th November 2025, grounded on Order 24 Rules 3, 7, and 10, and Order 51 Rule 1 of the Civil Procedure Rules, 2010, in conjunction with Sections 1A, 1B, and 3A of the Civil Procedure Act (Cap 21). The Applicant seeks the following: 1. Stay of all further proceedings, including the Notice to Show Cause and taxation of costs pending the substitution of the legal representative of the deceased Plaintiff’s estate. 2. The Plaintiff’s advocate filed the Notice to Show Cause dated 30thOctober 2025, but failed to pay the requisite filing fees as reflected in the ICT system, and further served the documents upon the Interested Party without an accompanying Hearing Notice or Mention Notice. 3. That the Honorable Court be pleased to strike out and/or dismiss the Notice to Show Cause dated 30thOctober 30, 2025, and the Bill of Costs dated 30thOctober 30, 2025, filed by the deceased Plaintiff's Advocate, on the grounds that they were filed after the demise of the Plaintiff and in the absence of a duly appointed legal representative, thereby rendering them null and void ab initio. 4. Costs of the application. ## The Application [4] The application is supported by a supporting affidavit, grounds of opposition, a further affidavit, and a subsequent fresh supplementary affidavit. The summary of these documents is that the Plaintiff, Phoebe Asiyo, is deceased. He annexed an obituary advertisement to the supporting affidavit, which shows that she passed away on 16th July 2025 and was scheduled to be laid to rest on 8th August 8, 2025. The Applicant deposed that, despite the undeniable demise of Phoebe Asiyo, her advocates proceeded to file the Notice to Show Cause and the Party and Party Bill of Costs on 30th October 2025. He raised a grievance that the advocates failed to pay the Kshs. 500 filing fee, claiming this failure is verifiable in the Judiciary ICT system. The Applicant argued that, following the death of Phoebe Asiyo, no formal substitution of the deceased Plaintiff by a duly appointed administrator has been effected as required by law. Therefore, he argues, the applications filed by the Plaintiff’s advocate are inherently irregular and incompetent on the premise that an advocate’s authority ceases upon the death of their client. [5] In addition to the supporting affidavit, the Applicant filed a document titled “Grounds of Opposition,” which largely reiterates the narrative set out in the Supporting Affidavit: that Phoebe Muga Asiyo is deceased and that proceeding without substituting a legal representative violates Order 24. The grounds of opposition also advance the argument that the Plaintiff’s title to the suit property was cancelled by the National Land Commission (NLC), as evidenced by Gazette Notice Vol. CXIX No. 97, issued on July 17, 2017. [6] The Applicant filed a fresh supplementary affidavit, sworn on 23rd July 2026, claiming to have received a green light from the Court. However, the correct position is that the supplementary affidavit uploaded to the Case Tracking System (CTS) was illegible, and the Court only directed a re-upload, not the filing of a fresh one. In this document, the Applicant reiterated the averments in the supporting affidavit. ## Summary of the Replying Affidavit [7] Juni Awiti Asiyo swore a replying affidavit in response to the application. She deposed that she initiated the suit by granting her mother, Phoebe Muga Asiyo, a Power of Attorney, necessitated by her living and working in the United States. She averred that the introduction of virtual hearings enabled her to attend court sessions and testify from the United States. The practical necessity of maintaining the Power of Attorney thereby fell away, and on 21st November 2022, her advocate sought the Court’s leave to replace her mother as the Plaintiff on record. The Court considered and allowed this prayer for substitution, with the express consent of the advocates representing the Defendants. She subsequently filed her witness statement. Consequently, she averred that her mother’s death does not hinder the matter from proceeding. **Parties’ Written Submissions** [8] The Applicant submitted on 16th December 2025 that Juni Awiti Asiyo’s name does not appear on the Court Order from 23rd October 2025, which dismissed the joinder application, nor on the Notice to Show Cause application. He argued that the Plaintiff has not provided any court record extract or amendment order to demonstrate that Juni Awiti Asiyo was properly recorded as the Plaintiff when the contested applications were filed. He also emphasised the legal principle that oral submissions cannot replace pleadings or documentary evidence. [9] The Plaintiff/Respondent contends that the entire application is flawed because it rests on the false assertion that the Plaintiff is deceased. They emphasise that Juni Awiti Asiyo is alive, of sound mind, and actively involved in the case. Counsel submitted that the record shows the substitution was made on 21st November 2022, with the Defendants’ counsel’s approval. It is argued that, after the substitution was approved, the late Phoebe Muga Asiyo was no longer a party. Her subsequent death did not restore her status as Plaintiff, nor did it necessitate another substitution. [10] The Plaintiff argued that Order 24 Rule 3 of the Civil Procedure Rules applies only when a party to the suit dies. In this case, the deceased was not the Plaintiff but a former Donee of a Power of Attorney. Counsel argued that Order 24 sets out procedures for the death of plaintiffs or defendants, but it does not address the death of representatives, witnesses, or agents whose authority has ended. To support this, the Plaintiff cited ***Ali & another v Fundi & 40 others [2024] KEELC 3419 (KLR),*** noting that while the death of a Donee terminates the agency, it does not cause abatement or require the substitution of the agent. [11] The Plaintiff’s counsel maintained that the documents submitted on 30th October 2025 were filed by counsel in accordance with clear instructions from the Plaintiff, who was properly on record. An advocate’s authority derives from the client (the principal), not from a previous agent or Donee. Consequently, the documents were properly filed, are valid, and cannot be considered null and void. [12] The Plaintiff opposes the stay, asserting that it assumes a need for substitution, which is unnecessary in this case. Therefore, a stay would only cause unnecessary delays in justice, violating Article 159(2)(b) of the Constitution. The Plaintiff highlights the Court of Appeal’s ruling in ***Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] KECA 453 (KLR),*** emphasising that judicial time is limited and should not be wasted on frivolous applications. ## Analysis and Determination [13] The Court has carefully evaluated the parties' rival contentions in the affidavits and submissions and identified the following issues for determination: Does the death of a Plaintiff, a donee of a Power of Attorney, trigger substitution under Order 24 of the Civil Procedure Rules? [14] Order 24, Rule 3(1) provides that: *“Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff 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 plaintiff to be made a party and shall proceed with the suit”.* Order 24, Rule 7(1) dictates the consequence of failing to substitute: *“Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action”*. [15] However, the primary question that must be answered before Order 24 can be invoked is: Did the Plaintiff die? To understand the distinction between the death of a donee and that of a donor, one must examine the existing jurisprudence on this point. In ***Meru & 3 others v Meru [2023] KECA 1600 (KLR),*** a son acting as a donee under a power of attorney filed a suit on his mother’s behalf. The mother (the donor) died during the pendency of the suit. The Court of Appeal held that the Power of Attorney was extinguished upon the donor’s death, but the cause of action survived, allowing the son (after obtaining letters of administration) to substitute himself as the legal representative. The Court of Appeal specifically held as follows: ***“14. On whether the power of attorney survives the death of the donor, there is consensus by both courts below that the power of attorney is extinguished upon death of the donor. We agree with that finding. In the present case, when the respondent’s mother died, the power of attorney that anchored him to file the suit on behalf of his mother was dislodged. The suit did not nonetheless sink and the respondent was able to take quick action to salvage it and put it back on course. The expiry of the power of attorney did not “kill” the suit as intimated by the appellants.”*** [16] In the present matter, the situation is inverted, as the donee, rather than the donor, died. The donor, Juni Awiti Asiyo, is alive. The death of the donee, Phoebe Muga, permanently severed her status as an agent, but it had no effect on the survival of the suit itself, nor did it trigger the mandatory substitution requirements of Order 24 Rule 3(1), because the true Plaintiff did not die. The Applicant’s invocation of Order 24 is therefore legally inapplicable to the facts of this case. [17] Additionally, as urged by the Respondent on 21st November 2022, the Court granted her leave to file a witness statement on her mother’s behalf, on the basis that her mother was unavailable to prosecute her case. The Plaintiff subsequently testified in the matter as an active litigant. Consequently, by the time Phoebe Muga Asiyo passed away in July 2025, Juni had long been back in the matter. The Applicant’s entire premise, that the Plaintiff died in 2025 and no substitution was effected, is probably based on a misapprehension of the court record. Therefore, the prayer to strike out pleadings on the basis of the death of her former agent is entirely baseless. [18] The Applicant further highlighted procedural defects, alleging that the advocates failed to pay the requisite Kshs. 500 filing fee (as allegedly shown in the ICT system) and failed to serve a hearing or mention notice with the documents. While payment of court fees is a mandatory prerequisite for the admission of documents, disputes over the ICT system or the failure to append a hearing notice upon service are strictly administrative and procedural anomalies. They do not and cannot render the documents null and void ab initio. [19] The Court also notes that the Applicant raised an issue concerning the substantive ownership of the land, despite this being an application concerning the taxation of costs. He relied on Gazette Notices Vol. CXXVII No. 230 and Vol. CXIX No. 97, dated 17th July 2017, to argue that the National Land Commission revoked allocations by the defunct Municipal Council of Kisumu and that the Plaintiff's title to L.R. No. 15037 was cancelled. [20] This is entirely irrelevant to the application before the Court. The Applicant filed a Notice of Motion to strike out a Bill of Costs and a Notice to Show Cause under the procedural rules of abatement (Order 24). The Bill of Costs arises directly from a previous court order dated 23rd October 2025, which dismissed the Applicant’s attempt to join the suit. The issue of who holds valid title to the land would be the subject of the main suit or any appellate proceedings. **Final Orders** [21] I give the following final directions. ## The Notice of Motion dated 5th November 2025, is hereby dismissed in its entirety for lack of merit. ## The Notice to Show Cause and the Bill of Costs dated October 30, 2025, are deemed validly on record and shall proceed to taxation. ## The costs of this application shall be borne by the Applicant. **Delivered virtually, signed and dated this 30th day of July 2026.** **C. C. Oluoch** **Judge** In the presence of: Faith Court Assistant In the absence of the parties and counsel