https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4771

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC APPEAL CASE NO. E034 OF 2021** **CHARLES JUMA WANANJABA(DECEASED)……. APPELLANT** **-VERSUS-** **ALFRED OKOMA MOYA………………………………. RESPONDENT** **AND** **MARTIN WAWIRE JUMA………………………………APPLICANT** **RULING** **Introduction** 1. Before this court is the Notice of Motion dated 3rd February 2026 in which the applicant seeks the following orders: 2. **That this Honourable court be pleased to substitute the deceased plaintiff Charles Juma Wananjaba with Martin Wawire Juma the legal representative of the deceased pursuant to the limited grant of letters of administration issued in the Kakamega CM’s court Ad litem cause number E004 of 2025.** 3. **That the subdivision, transfer and registration of the resultant sub-divisions of the suit land parcel number Bunyala/Nambacha/702 namely Bunyala/Nambacha/2599 and Bunyala/Nambacha/2600 be cancelled forthwith.** 4. **That the title deeds for Land parcels Bunyala/Nambacha/2599 and 2600 be cancelled and the same be reverted back to land parcel number Bunyala/Nambacha/702 registered in the name of Charles Juma Wananjaba (Deceased)** 5. **That the costs of the application be borne by the Respondent.** 6. The application is premised on the grounds set out therein and is supported by the affidavit of the applicant sworn on 3rd February 2026. The applicant depones that he brings the application on behalf of the estate of the deceased, Charles Juma Wananjaba, whose parcel of land known as Bunyala/Nambacha/702 was unlawfully subdivided into parcels Bunyala/Nambacha/2599 and Bunyala/Nambacha/2600 following the judgment delivered by Hon. Malesi on 16th July 2021. 7. He added that being dissatisfied with that decision, the deceased preferred an appeal in Kakamega ELC Appeal No. E034 of 2021, which culminated in a judgment delivered on 20th June 2024 allowing the appeal and setting aside the judgment and decree of the trial court. 8. That thereafter, the deceased obtained a decree dated 23rd October 2024 and an eviction order dated 16th December 2024, which were served upon the respondent. It is the applicant's case that despite the said orders, the respondent has remained in unlawful occupation of the suit property. The applicant further avers that the deceased passed away before he could enjoy the fruits of the judgment, thereby necessitating his substitution to facilitate the enforcement of the decree and restoration of the suit property to its original status. 9. The application is opposed. The respondent filed Grounds of Opposition dated 2nd April 2026 contending that, according to the applicant's own affidavit, the deceased passed away on 5th January 2025, whereas the present application was lodged on 6th February 2026, more than one year after the deceased's demise. The respondent therefore argues that the proceedings abated by operation of Order 24 Rule 3(2) of the Civil Procedure Rules and that, in the absence of an application for revival under the relevant provisions of Order 24 of the Civil Procedure Rules, the application is incompetent and incapable of being sustained. 10. The application was canvassed by way of written submissions. Whereas the applicant did not file any submissions, the respondent filed written submissions dated 25th May 2026, which this court has carefully considered together with the applicable law. **Analysis and determination** 1. The court has carefully considered the application, the grounds of opposition, the respondent’s written submissions and the applicable law. In my considered view, the issues falling for determination are whether the present proceedings abated by operation of Order 24 Rule 3(2) of the Civil Procedure Rules, and whether the orders sought in the application are available to the applicant in the absence of an application for revival of the suit. 2. Under Order 24 Rule 3(2) of the Civil Procedure Rules, if no application for substitution is made within one year of the death of a party, the suit abates. Order 24 Rule 3(2) of the Civil Procedure Rules provides that; ***“2)Where within one year no application is made under subrule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff: Provided the court may, for good reason on application, extend the time.”*** 1. However, this matter has already been heard to conclusion and determined. The deceased appellant passed on after the decree had been issued. In those circumstances, the suit having been determined, there is no pending suit capable of abating, hence the argument that the suit has abated fails. 2. Order 24 Rule 10 of the Civil Procedure Rules provides; ***“10. Application of Order to execution proceedings [Order 24, rule 10]*** ***Nothing in rules 3, 4 and 7 shall apply to proceedings in execution of a decree or order.”*** 1. In **Waweru v Kariuki (Civil Appeal 288 of 2019) [2025] KECA 1810 (KLR) (7 November 2025) (Judgment),** the Court of Appeal stated as follows; ***“16. The ELC dismissed the application on the basis of Order 24 Rule 4(1) – (3), which provides that substitution must be elected within one (1) year of a defendant’s death, failing which the suit abates. Revival may only be sought under Rule 7(2) where sufficient cause is shown. 17.However, we find that this case is distinguishable since judgment had already been delivered. The proper provision is therefore Order 24 Rule 10, which expressly exempts execution proceedings from the application of Rules 3, 4, and 7. 18.”*** The Court further stated; ***“20. In the instant case, there was no requirement to revive the suit after Evanson’s death for purposes of substitution. The ELC therefore erred in finding otherwise. 21. The upshot is that we find that this appeal has merit. The appellant’s application, being post-judgment, fell squarely under Order 24 Rule 10 of the CPR. Revival was unnecessary, and substitution ought to have been allowed.”*** 1. The Court in **Egylyne Chepchirchir Choge & Another v County Council of Trans-Nzoia [2022] eKLR,** expressed itself on the effect of the death of a decree holder or judgement debtor after judgement by stating as follows; ***“The law governing time within which legal proceedings may be brought against a party after the passing of a decree is to be found in the Limitations of Actions Act.”*** 1. Therefore, the application before me is competent, and the appeal herein having been determined, the same is incapable of abating and hence the question of revival does not arise. 2. On whether the application is merited, the applicant argued that the decree is yet to be executed and that the respondent had subdivided the suit property as decreed by the trial court which decision was set aside by this court. That being the case the applicant is entitled to substitute the deceased appellant to enable him move the court to execute the decree. In the judgment of this court made on 20th June 2024, the court allowed the appeal, set aside the trial court’s judgment, and ordered the respondent to vacate parcel No. Bunyala/Nambacha/702 within 90 days. In view of the right to access to justice provided for in Article 48 of the Constitution of Kenya this court is enjoined to make orders that would allow the litigant enforce the pronouncements made by the court so that the same is not rendered a paper judgment. 3. From the proceedings it is clear that parcel No. Bunyala/ Nambacha/702 was subdivided on 8th November 2022, that was after this appeal had been filed. If the subdivision is allowed to subsist, the appellant will not be able to execute the judgement herein and enjoy the fruits thereof. 4. In the premises, I find and hold that the application dated 3rd February 2026 is merited and the same is hereby allowed as follows; 5. **That the deceased plaintiff Charles Juma Wananjaba is hereby substituted with Martin Wawire Juma the legal representative of the deceased’s estate, pursuant to the limited grant of letters of administration issued in the Kakamega CMC’s Court Ad litem Cause number E004 of 2025.** 6. **That the subdivision, transfer and registration of the resultant sub-divisions of the suit land parcel number Bunyala/Nambacha/702 namely Bunyala/Nambacha/2599 and Bunyala/Nambacha/2600 are hereby cancelled forthwith.** 7. **That the title deeds for Land parcels Bunyala/Nambacha/2599 and 2600 are hereby cancelled and the same be reverted to land parcel number Bunyala/Nambacha/702 or such other new number as the Director of surveys and Land Registrar may deem fit and registered in the name of Charles Juma Wananjaba (Deceased)** 8. **That the costs of the application shall be borne by the Respondent.** 9. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 15TH DAY OF JULY 2026** **A. NYUKURI** **JUDGE** **In the presence of;** Applicant in person Ms Ikhumba for the respondent Court Assistant- Delphine