https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3274

Muge (Suing as the Administrator of the Estate of John Kimugge Kessei (Deceased)) v Kipkabus & 7 others (Environment and Land Case 888 of 2012) [2026] KEELC 3274 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEELC 3274 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Case 888 of 2012 EM Washe, J May 26, 2026 Between Beatrice Jelagat Muge (Suing as the Administrator of the Estate of John Kimugge Kessei (Deceased)) Plaintiff and Richard Sitienei Kipkabus 1st Defendant Japheth Serem 2nd Defendant Musa Komen 3rd Defendant Garce Komen 4th Defendant Peter Kipng’Etich 5th Defendant Samuel Barno 6th Defendant and Collins Kibet Rono Applicant and Kipchumba Kosgei Defendant Ruling 1.The Applicant one Collins Kibet Rono did file a Notice of Motion Application dated 10.11.2025 (hereinafter referred to as the ‘present application’) seeking the following orders: -a.That this Application be certified as urgent and service be dispensed with in the first instance.b.That the firm of Oyaro J & Associates Advocates be allowed to come on record on behalf of the Applicant/Appellant after Judgment.c.That the 1st Defendant herein Richard Sitienei Kipkabus (deceased) be substituted by the Applicant herein Collins Kibet Rono.d.That this Honourable Court be pleased to issue an Interim Stay of execution in this matter pending the hearing and determination of the instant review application.e.That this Honourable Court be pleased to review and/or vary its Judgment delivered on 29.07.2025 and Order for Status Quo be maintained pending the hearing and determination of the instant review application.f.That costs of the application to be in the cause. 2.The prayers in the present Application are premised on various grounds and/or facts pleaded in the body of the application as well as the supporting affidavit thereof and can be summarized as follows; -i.The Applicant herein is aggrieved by the Judgement of this Court pronounced on the 29.07.2025.ii.According to the Applicant, the Judgement pronounced on 29.07.2025 did declare the Plaintiff herein as the lawful owner of the whole property known as LR.NO.7558 (hereinafter referred to as “the suit property”) and therefore the 1st Defendant was ordered to vacate the portion on which he had occupied for a period of over 12 years.iii.The main reason why the Applicant sought for the judgement pronounced on the 29.07.2025 to be reviewed and set-aside is that the 1st Defendant and/or his Estate was not given an opportunity to defend their interest within the suit property which they had lawfully acquired.iv.According to the Applicant, the suit property measuring 433 acres was the asset of one Tirus Gitau Kamanda who has since passed on.v.However, the estate of the late Tirus Gitau Kamanda did give consent in writing to the 1st Defendant and subsequently the Estate thereof to occupy and use the same exclusively including the Applicant herein who is the son.vi.The Applicant did disclose in the present Application that the 1st Defendant went to be with the Lord on the 27.10.2020 and thereafter, there was no substitution and/or participation by his Estate to enable a fair hearing on the part of the 1st Defendant before the Judgement pronounced on the 29.07.2025 was made.vii.Further to the foregoing, the Applicant did plead that the Judgement pronounced on the 29.07.2025 was not clear and therefore ambiguous on the location of the Plaintiff’s portion of land measuring 10 acres within the suit property which measures approximately 433 acres which should be in occupation and use of the 1st Defendant and/or his Estate.viii.It is his claim that the 1st defendant’s case was not heard at the time of the hearing, despite the 1st defendant enjoying a substantial interest in the suit property.ix.In addition to the foregoing, the Applicant did inform the Court that the Estate of the registered owner of the suit property namely Tirus Gitau Kamanda had initiated succession proceedings known as Eldoret Succession Cause P& A No. 5 of 1984 for purposes of administering the estate of the late Tirus Gitau Kamanda.x.In this proceedings known as Eldoret Succession Cause P& A No. 5 of 1984 for purposes of administering the estate of the late Tirus Gitau Kamanda, the beneficiaries thereof had reached a Mediation Consent in the manner in which the assets would be distributed therein.xi.Consequently, if the Mediation Consent reached by the beneficiaries of the estate of Tirus Gitau Kamanda was recorded and implemented, it would not be in line with the Judgement pronounced by this Court on the 29.07.2025 thereby creating further confusion on the lawful owner of the suit property.xii.Lastly, the Applicant did plead that the Judgement pronounced on the 29.07.2025 was erroneous for the reason that it did not consider the fact that the 1st Defendant and his family including the Applicant had been in occupation of the suit property for over a period of twelve (12) years.xiii.In essence therefore, the Plaintiff’s ownership rights, if any, had been extinguished through the law of adverse possession and he could not sustain and/or be successful in his claim to be the lawful and legitimate owner of the suit property.xiv.Lastly, the Applicant was of the view that upon demise of the original Plaintiff, his estate did make an application for substitution after a period of three (3) years of which at that time, the suit filed by the Plaintiff had abated.xv.In conclusion, the Applicant sought this Court to grant the prayers sought in the present application in the interest of justice and the principle of fair hearing. 3.The present Application was duly served on the Plaintiff and the Defendants herein. 4.The Plaintiff herein did oppose the present Application through a Replying Affidavit dated 17.11.2025. 5.In the Plaintiff’s Replying Affidavit dated 17.11.2025, the present Application was opposed on the following grounds; -i.The present Application was an abuse of the court process, baseless, frivolous, scandalous, incompetent, misadvised and made in bad faith and thus ought to be dismissed with costs.ii.To begin with, the Plaintiff did oppose the prayer seeking for a substitution of the 1st Defendant with the Applicant on the basis that it had been after undue delay amounting to 5 years since the demise of the 1st Defendant.iii.The Plaintiff did further plead that the grounds advanced by the Applicant in support of the prayers in the present Applicant did not comply with the grounds provided in law for a review of a Judgement pronounced in determination of a suit.iv.In any event, the Plaintiff did insist that the 1st Defendant was represented by the same advocate as that of the other defendants on the 11.11.2024 and the proceedings show that all the Defendants had elected to testify through one witness known as Sammy Ruto Barno.v.In essence, the Plaintiff did plead that all the Defendants including the 1st Defendant had tendered their testimonies and documents before the Court prior to the Judgement pronounced on the 29.07.2025.vi.As regards the allegation of adverse possession, the Plaintiff did dispute the allegation that the 1st Defendant had acquired a legal interest on the suit property by way of adverse possession after occupying the same for a period of over twelve years.vii.The Plaintiff did disclose that the 1st Defendant had in fact invaded the suit property in the year 2008 and the present suit was filed in the year 2012 which was just about 5 years from the date of the forceful entry.viii.In essence, the Plaintiff did seek this Court to dismiss the present Application forthwith with costs. 6.None of the Defendants herein did file an response to the present Application. 7.The Plaintiff’s Replying Affidavit dated 17.11.2025 was duly served on the Applicant who did file a Further Affidavit dated 26.11.2025 in response. 8.In the Further Affidavit dated 26.11.2025, the Applicant did state the following facts; -i.In response to allegation that the witness known as Sammy Ruto Barno who is the 6th Defendant had testified on behalf of all the Defendants, the Applicant did dispute this allegation on the ground that there was no Letter to Act on behalf of the other Defendants as required under Order 1 Rule 13(1) and (2).ii.Secondly, the proceedings in the file do not show that the testimony of the person known as Sammy Ruto Barno was on behalf of all the Defendants in the proceedings.iii.In any event, the Applicant did state that by the time of Sammy Ruto Barno testifying, the 1st Defendant had since passed away and no substitution had taken place to consent for Sammy Ruto Barno to testify on behalf of the Estate.iv.In other words, any hearing undertaken after the demise of the 1st Defendant without substitution was irregular for the reason that the Estate of the 1st Defendant was never given an opportunity to participate in the hearing prior to the Judgement pronounced on 29.07.2025.v.As such, the prayers sought in the present Application were merited and should be granted forthwith. 9.Upon filing of the above pleadings, the Court did direct that the present Application be canvassed by way of written submissions. 10.Indeed, the Applicant did file his submissions in support on the 30.01.2026 while the Plaintiff did file her submissions on the 20.02.2026. 11.The Court did duly peruse the present Application, the Replying Affidavit, the Further Affidavit and the submissions herein and identified the following issues for determination; -Issue No.1-is The Applicant Entitled to an Order for Substitution of the 1st Defendant?Issue No.2- Is The Applicant Entitled To an Order of Stay of the Judgement Pronounced on The 29.07.2025 Pending the Hearing and Determination of the Present Application?Issue No.3- Is the Applicant Entitled to any Order of Review and/or Setting Aside of the Judgement Pronounced on the 29.07.2025?Issue No.4- Is the present Application Merited or Not?**Issue No.5- Who Bears the Costs of the Present Application?** 12.The Court having duly identified the above issues for determination, the same will now be discussed as provided below. Issue No.1-is The Applicant Entitled to an Order For Substitution of the 1St Defendant? 13.The first issue for determination is whether or not the Applicant herein should be substituted in place of the 1st Defendant herein. 14.The Applicant herein did plead in the present Application that he is the son of the 1st Defendant who did pass away on the 27.10.2020 as per the Death Certificate No.105XXX attached to the Supporting Affidavit sworn by the Applicant. 15.According to paragraph 2 of the Supporting Affidavit sworn by the Applicant, there is an attached Order issued on the 13.08.2025 in the proceeding known as Eldoret Chief Magistrates Court Miscellanous Application No. E267 of 2025 issuing a Limited Grant to the Applicant herein to prosecute and defend the proceedings instituted against the 1st Defendant herein. 16.To begin with, this Court is disturbed by the nature of document which the Applicant is seeking to rely upon as the Limited Grant issued through the proceeding known as Eldoret Chief Magistrates Court Miscellanous Application No. E267 of 2025. 17.On the face of the Order issued in the proceeding known as Eldoret Chief Magistrates Court Miscellanous Application No. E267 of 2025, it is clear that the proceedings were not in relation to the Estate of the 1st Defendant. 18.Instead, the proceeding known as Eldoret Chief Magistrates Court Miscellanous Application No. E267 of 2025 shows the parties to be the Applicant and the deceased 1st Defendant. 19.The Law of Succession, Cap 160 provides for Limited Grants under the provision of Section 54 which states as follows; -“A Court may, according to the circumstances of each case, limit a grant of representation which it has jurisdiction to make, in any of the forms described in the fifth schedule” 20.Under the fifth schedule of the Law of Succession, Cap 160, Rule 14 provides as follows; -“when it is necessary that the representative of a deceased person be made a party to a pending suit, the executor of a person entitled to administration is unable or unwilling to act, letters of administration may be granted to a nominee of a party in the suit, limited for the purpose of representing the deceased therein, or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties, touching the matters at issue in the cause or suit, and until a final decree shall be made therein, and carried out into completion” 21.Under the Probate and Administration Rules, Rule 12 relating to Application for Limited Grants under the Fifth Schedule are to be made as follows; -“An Application for a grant of representation to be limited in any of the several respects described in the Fifth Schedule to the Act shall be by Petition in the appropriate Form and shall be supported by such evidence by affidavit in Form 19 as required by these Rules including such evidence as is sufficient to establish the existence of the facts and circumstances relative to the particular respect in which the grant is to be limited.” 22.Based on the above provisions of the Law of Succession, Cap 160 as well as the Probate and Administrative Rules therein, it is not in doubt that a person seeking for a Limited Grant must file a substantive Petition before either the High Court or a Magistrate’s Court within the jurisdiction where the suit is pending and is to be filed. 23.Unfortunately, the Applicant’s action of seeking a Limited Grant in relation to the Estate of the 1st Defendant through a Miscellaneous Application in the form a Notice of Motion dated 12.08.2025 as contained in the Order issued on 13.08.2025 in the proceedings known as Eldoret Chief Magistrates Court Miscellanous Application No. E267 of 2025 did not comply with the provisions of the Succession Act, Cap 160 and well as the Probate and Administration Rules therein and therefore is irregular and unlawful. 24.For this reason, this Court hereby declines to substitute the Applicant herein as the Legal Administrator or Representative of the Estate of the 1st Defendant as sought in Prayer No. 3 of the present Application. Issue No.2- Is the Applicant Entitled to an Order of Stay of the Judgement Pronounced on the 29.07.2025 Pending The Hearing And Determination of the Present Application? 25.The second issue for determination is whether the Applicant was entitled to an Order of Stay of execution of the Judgement pronounced on the 29.07.2025 pending the hearing and determination of the present Application. 26.However, keeping in mind that this order was not granted in the interim and the Court is now making its final determination of the present Application, then this issue has been overtaken by events and no order can be granted on the same. Issue No.3- Is the Applicant Entitled to any Order of Review and/or Setting Aside of the Judgement Pronounced on the 29.07.2025? 27.The third issue is whether the Applicant is entitled to an Order of Review by was setting-aside the Judgement pronounced on the 29.07.2025 and a fresh hearing of the 1st Defendant’s case on its merit. 28.To answer this issue, it is not in dispute that the 1st Defendant did pass away on the 27.10.2020. 29.Since the year 27.10.2020, neither the Plaintiff nor the Estate of the 1st Defendant did take any action to substitute the 1st Defendant. 30.On the 13.08.2025, the Applicant herein did seek to obtain a Limited Grant through the proceeding known as Eldoret Chief Magistrates Court Miscellanous Application No. E267 of 2025 by way of a Notice of Motion dated 12.08.2025. 31.Based on the finding that the Order issued on the 13.08.2025 issuing a Limited Grant in favour of the Applicant was not procedural and therefore irregular and incapable of legally appointing the Applicant as an Administrator of the Estate of the 1st Defendant, then the present Applicant in totality is irregularly before the Court as it was filed by someone without a proper Limited Grant as provided under the Law of Succession, Cap 160 and the Probate and Administrative Rules therein. 32.As such, the Court has not been properly moved to invoke its discretional powers to consider whether the prayer for review through an order of setting-aside is merited or not. 33.However, for all its worth, even if the Court was to assume which it does not that the Limited Grant issued to the Applicant on the 13.08.2026 was valid and the substitution is allowed, would the Applicant have succeeded in his prayer of Review as sought in this issue? 34.The relief of review is founded on the provisions of Order 45 Rule of the Civil Procedure Rules, 2010 which state as follows; -“Any person considering himself aggrieved; -a.by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgement to the court which passed the decree or made the order without unreasonable delay.” (emphasis mine) 35.The above provision granted three broad grounds upon which an Order of Review can be granted which are namely (a) discovery of new and important matters or evidence (b) mistake or error apparent on the face of the record and (c) any other sufficient reason. 36.In other words, the Applicant to succeed in an Application for Review must clearly identify which of the three broad grounds it seeks the Court to consider. 37.A perusal of the present Application made by the Applicant makes it impossible to clearly pick out which of the three grounds the order or review has been premised on. 38.Based on the facts and evidence relied upon by the Applicant in the present Application, it is clear that the Applicant is aggrieved by the fact that the 1st Defendant who died in the year 2020 or his estate was not given a hearing by the Court prior to the Judgement pronounced on the 29.05.2025. 39.The Applicant did further point out various issues like the ambiguity of the portion of land in dispute contained in the Judgement pronounced on the 29.07.2025 and the failure by the Court to consider the Defence of Adverse possession. 40.It is clear to this Court that the facts relied upon by the Applicant largely seek to challenge the consideration and/or merit of the Judgement pronounced on the 29.05.2025. 41.This is because the Applicant has not pointed out any new or important facts that were not within his knowledge at the time of the hearing that were not represented to the Trial Court by either the 6th Defendant who was the alleged joint witness or the Plaintiff therein. 42.Similarly, the Applicant did not point out any omission or error on the face of the Judgement pronounced on the 29.05.2025 occasioned by the Court that resulted to any injustice on the part of the 1st Defendant. 43.What the Applicant is challenging is the entire process in which the Court undertook the hearing and the substantive determinations that were pronounced in the Judgement made on the 29.07.2025. 44.This Court having pronounced the Judgement on the 29.05.2025 became functus officio to the dispute presented by the Plaintiff herein. 45.The only way forward is for the Applicant to obtain the lawful Letters of Administration and thereafter be substituted on behalf of the 1st Defendant for purposes of filing an appeal before the Court of Appeal. 46.Even as the Court considers the merit and demerits of the Applicant’s prayer for Review, the Plaintiff did plead that in fact the 1st Defendant’s suit had abated by the time the hearing was being conducted in the year 2024. 47.In other words, the Plaintiff did admit that the suit against the 1st Defendant did cease after twelve months upon the demise of the 1st Defendant on 27.10.2020. 48.Unfortunately, the Applicant did not substantively respond to this issue of whether the Plaintiff’s suit against the 1st Defendant had abated upon his demise or not. 49.Instead, the Applicant did state that the Estate of the 1st Defendant were not aware of the existence of the present suit. 50.The provisions of Order 24 Rule 4 of the Civil Procedure Rules, 2010 provides as follows; -“4.(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 Sub-rule (1), the suit shall abate as against the deceased defendant.” 51.Looking at the provision of Order 24 Rule 4 of the Civil Procedure Rules, 2010, it is clear that upon the demise of one or more Defendants, an Application for substitution of the deceased Defendant with the Legal Representative must be done within One year from the death of the said Defendant and/or Defendants. 52.This Application for substitution can be made by either the Plaintiff and/or the Estate of the deceased Defendant. 53.However, if no application is made by either the Plaintiff or the Estate of the Deceased Defendant, the cause of action against the said Defendant(s) automatically stands abated. 54.There is no doubt in the mind of the Court that there was no application for substitution of the deceased 1st Defendant upon his demise on the 27.10.2020. 55.In other words, the suit against the 1st Defendant did abate on the 28.10.2021. 56.This being the case, even if the Court was to review and/or set-aside the Judgement pronounced on the 29.07.2025, there would be no cause of action against the legal representative of the 1st Defendant to be heard and determined as the same did abate on the 28.10.2021. 57.The Order of Review sought by the Applicant if granted would be an exercise in futility. 58.In essence therefore, this Court is of the considered view and finding that the Prayer for Review and setting-aside the Judgement pronounced on the 29.05.2025 is not merited and cannot be granted. Issue No.4- Is the Present Application Merited or Not? 59.Based on the findings of this Court in Issue No.1, 2 and 3 hereinabove, this Court is of the finding that the present Application is not merited. Issue No.5- Who Bears the Costs of the Present Application? 60.On costs, the winning party is the one awarded the costs. 61.The Application having been found to be unmerited, the Applicant is condemned to pay costs to the Plaintiff herein only. Conclusion 62.In conclusion, this Court hereby makes the following Orders in determination of the present Application; -A.The Notice of Motion Application Dated 10.11.2025 is not Merited and therefore dismissed.B.The Applicant is condemned to pay costs of the Application to the Plaintiff only. DATED, SIGNED AND DELIVERED IN ELDORET THIS 26TH DAY OF MAY, 2026.EMMANUEL.M. WASHEJUDGEIn the presence of:Court Assistant: Mr. BrianCounsel for the Applicant: Mr. OyaroCounsel for the Plaintiff: Mr. ChepkwonyCounsel for the Defendants: N/A