https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4231

Muniko & another v Waigoge & 3 others (Environment and Land Case E015 of 2020) [2026] KEELC 4231 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELC 4231 (KLR) Republic of Kenya In the Environment and Land Court at Migori Environment and Land Case E015 of 2020 FO Nyagaka, J June 16, 2026 Between Christine Robi Muniko Applicant and Muniko Simion Gibiti Plaintiff and John Nyahiri Waigoge 1st Respondent Matinde Thomas Waigoge 2nd Respondent Gati Daniel Waigoge 3rd Respondent Eddy Gichuru Oketch 4th Respondent Ruling The Application 1.The applicant filed a Notice of Motion dated 14th July 2025. Her application was anchored on Sections 1A and 3A of the Civil Procedure Act, Order 24 Rules 3 and 7, and Order 51 Rule l of the Civil Procedure Rules 2010. She sought the following orders:1.That this Honorable court do grant leave to extend the time for making an application for substitution.2.That upon granting prayer number (2) above that this honorable court be pleased to substitute the deceased Plaintiff herein Muniko Simion Gibiti with his legal representative Christine Robi Muniko as the Plaintiff.3.That this Honourable court be pleased to revive/ resuscitate this suit and allow the same to proceed in the name of the legal representative of the deceased Plaintiff.4.That this Honourable court be pleased to reverse/vacate/set aside the defendant's party to party billing of costs for taxation dated 6/3/2025.5.That costs of this Application be provided for. 2.The grounds in support of the application were outlined on its face as well as contained in the depositions in the Affidavit of Christine Robi Muniko, the applicant. The basis of the application is that the suit, which had been initiated Muniko Simion Gitibi who was the applicant’s husband, abated. The reason for the abatement as given by the applicant is that, following the death of her husband in on 7th February 2024, she was severely affected by it since her deceased husband was the sole breadwinner of her family. She stated that she developed a chronic illness and sought traditional treatment in Tanzania for a period of over eight (8) months, hence the suit abated. 3.The applicant stated that she had since obtained a limited Grant Ad Litem to enable her prosecute the suit on behalf of the deceased’s Estate. She prayed further for substitution of the deceased by her so that she takes his place in the matter. She also prayed that she be granted leave to file an application for substitution. Equally, she prayed that the court be pleased to reinstate the suit herein and reverse, vacate and /or set aside the defendant’s bill of costs dated 6th March 2023. 4.Lastly, the applicant stated that it would be in the interest of justice that the application be allowed. 5.She annexed to the application a copy of the applicant’s deceased husband’s certificate of death and a copy of the limited Grant ad Litem to demonstrate her deposition. The response 6.The 1st Respondent swore a replying affidavit on 8th September 2025. She deponed in it that he swore the same on behalf of the 2nd and 3rd respondents who had granted her authority to swear on their behalf. He added that the fact of the deceased husband’s death was brought to the attention of the court on 6th November 2024, and the Estate of the deceased was granted leave to substitute him. However, when the matter came before this court for substitution she was not preset in court, thus, the matter abated. Then the respondents drew their party and party bill of costs and filed it. 7.In addition to the above, the 1st respondent contended that the reason given by the Applicant for the delay in applying for substitution and prosecuting the matter was not backed by evidence. He maintained that it was not clear whether the applicant was in Tanzania for the entire twelve (12) month period (before abatement) and whether she was actually unwell. He stated that the applicant’s counsel was aware of the death of the applicant’s husband, was granted leave to take instructions for purposes of substitution and hence the abatement of the suit was caused by indolence. 8.The 1st respondent also stated that the applicant had not been enjoined (meaning, “joined”) in the suit and hence because she had deliberately failed to seek leave to be joined in the suit after the lapse of twelve (12) months following the death of her husband. As such, he contended that the prayer for the revival of the suit and the vacation of the Bill of Costs was premature, and had been sought by a party who did not have locus standi. He added that the applicant had not demonstrated any sufficient cause in failing to apply for substitution within the prescribed timeline. He concluded that it would be in the interests of justice that the application be dismissed. Submissions 9.The application was canvassed by way of written submissions. The applicant filed hers dated 13th January 2026 while the respondents filed theirs dated 3rd February 2026. The applicant identified three (3) issues for determination, namely: whether she had demonstrated sufficient cause to warrant revival of the abated suit; whether the respondents will suffer prejudice if the suit is revived; and whether the court should exercise its discretion in favour of revival in the interests of justice. 10.She submitted that abatement does not extinguish the court’s jurisdiction to revive a matter that abates provided the applicant can demonstrate sufficient cause for not continuing with the suit. She relied on the court of appeal decision in Attorney General v the Law Society of Kenya Another Civil Application No 133 of 2011 eKLR to submit that what amounts to sufficient cause is a reason that the must be rational, plausible, logical, convincing, reasonable and truthful. The explanation should neither leave doubt in the judge’s mind nor leave unexplained gaps in the sequence of events. She relied on a host of other cases to submit that the delay in the continuation of the case could still be excused in pursuit of a just determination of the dispute at hand. These cases include, Ivita v Kyumbu [1984] KLR 441 and Philip Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR). 11.Moreover, the applicant maintained that the reasons given for the abatement of the suit have not been controverted by the respondents, despite the latter’s allegation that the said reasons were never proved. She relied on Mwangi S. Kimenyi v Attorney General & another [2014] KEHC 4220 (KLR), to submit that the prejudice to be suffered by a party must be real and demonstrable. Thus, the defendant/respondent must show how he or she has suffered additional prejudice which is substantial and results in an impediment to the right tot fair trial, aggravated costs and specific hardships to the said defendant/respondent. According, it is not sufficient for a party to merely state that she/he would suffer prejudice without demonstrating how that party would be prejudiced. 12.On the contrary, the applicant maintained that she will be prejudiced should the revival of her suit no be allowed. She stated that she would be permanently locked from being heard on merit, contrary to Article 50 of the Constitution. She also referred to Section 1B of the Civil Procedure Act and Article 159 (2) (d) of the Constitution to urge the court to disregard procedural technicalities in favour substantive justice. 13.The respondents on the other hand identified three (3) issues for determination: whether the applicant demonstrated sufficient cause to warrant revival of the abated suit, whether they would suffer prejudice should the suit be revived, and whether the Court should exercise its discretion in favour of revival in the interests of justice. 14.As to whether the applicant had demonstrated sufficient cause to warrant revival of the abated suit, the respondents submitted that fact of the abatement of the suit herein is not disputed. They further submitted that counsel for the plaintiff informed the court of the plaintiff’s demise and promised to seek instructions concerning the substitution of the said plaintiff. However, no such substitution occurred (in time) and the suit eventually abated pursuant to Order 24 Rule 3 of the Civil Procedure Rules. Thereafter, the respondents maintained that they sought the costs they had incurred in defending the suit and the same was awarded by the court. 15.It was the respondents’ further submission that the Applicant only woke from her comfort when she was served with a bill of costs. They submitted that the applicant’s allegations that she was unwell and in Tanzania for a period of over 8 months was not substantiated by any evidence. Reliance was placed on the Court of Appeal decision in Said Sweilem Gheithan Saanum -v- Commissioner of Lands (being sued through the Attorney General) & 5 Others (2015) to outline the process of substituting a deceased plaintiff, abatement of a suit and the conditions that must be met by an applicant before an abated suit could be reinstated. 16.On whether the respondents would suffer prejudice should the application be allowed, it was submitted that the parties had been in court since 2020. On 17th February 2024, the respondents were awarded costs after the suit abated. The Bill of costs was pending before the deputy registrar for taxation. Reviving the suit, according to the respondents would hinder the overriding objectives provided in the Civil Procedure Act. 17.Finally, on the issue of whether the court should exercise its discretion in favour of revival in the interests of justice, the respondents submitted the applicant had not demonstrated sufficient cause for the grant of the order of reinstatement of the suit. They submitted that the delay here in was deliberate, unexplained and clearly attributable to inexcusable indolence on the part of the Applicant 18.The applicant relied on Rebecca Mijide Mungole & Another -vs- Kenya Power & Lighting Company Ltd & 2 Others [2017] eKLR where it was held that courts could use their discretion to reinstate an abated suit where an applicant demonstrates sufficient cause for doing so. Even so, the courts can order such reinstatement on such conditions as costs among others. Moreover, the respondents submitted that this court is not obligated to focus on substantial justice, more so, where the applicant has been negligent in pursuing his cause. They cited Charles Wanjohi Wathuku -vs- Githinji Ngure & Another Civil Application No. 9 of 2016 to emphasize on the need to adhere to strict timelines in litigation and to buttress the argument that timeless are not procedural technicalities as to be accommodated under Article 159 (2) (d) of the Constitution as well as Section 3A and 3B of the Appellate Jurisdiction Act. 19.In conclusion, the respondents contended that the applicant had failed to proof that she had sufficient cause in delaying in the prosecution of her matter. They urged the court to dismiss the application with costs. Issues, Analysis and Determination 20.This Court is of the view that it ought to address two procedural issues at the preliminary stage. The first one is whether it is proper for a party seeking to be substituted in a matter wherein the party sought to be replaced died and his suit abates, the applicant should move the court for other substantive orders before seeking the revival of the suit. In my view, a person seeking to be joined in an abated suit should first seek and be granted leave to revive the suit before they move the court for other substantive prayers. The reason is that once a suit has abated it no longer exists. 21.Therefore, based on he above reasoning, a party cannot move the court in a non existent matter for a claim of rights therein. The suit must be alive. How can an abated suit be brought to live in order for an application to be made procedurally in it? The answer lies in how a suit abates: it is the effluxion of time absent of substitution that causes it not to exist. Thus, time has to be enlarged first and then the suit comes to life again. 22.In Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Ltd & 2 others [2017] eKLR the Court of Appeal held as follows;“Where a suit abates, no fresh suit can be brought on the same cause of action because it is extinguished and cannot be maintained in the form it was originally presented. Because the suit will only abate where, within one year of the death of the Plaintiff no application is made to cause the legal representative of the deceased Plaintiff to be joined in the proceedings, it is imperative and we may add, logical, where the legal representative is not so joined within one year, that an application be made for extension of time to apply for joinder of the deceased Plaintiff’s legal representative. (Emphasis mine) It is only after the time has been extended that the legal representative can have capacity to apply to be made a party. Order 24 must be construed by reading it as a whole and the sequence in which it is framed must be followed without short circuiting it. The proviso to rule 3(2) to the effect that the court may, for good reason on application, extend the time goes to show that without time being extended, no application for revival or joinder can be made. It is the effluxion of time that causes the suit to abate. It is that time that must, first be extended. Once time has been enlarged, only then can the legal representative bring an application to be joined in the proceedings. Again, it is only after the legal representative has been joined as a party that he can apply for the revival of the action. In our view there is nothing objectionable to making an omnibus application for all the three prayers. But it is incompetent to seek joinder or revival when the prayer for more time to apply has not been granted.” 23.From the decision above, the sequence of things is important. Furthermore, the Court of Appeal in Said Sweilem Gheithan Saanum v Commissioner of Lands (being sued through Attorney General) & 5 others [2015] eKLR, set out the procedure followed after the death of a plaintiff. It gave three stages as follows:“There are three stages according to these provisions. As a general rule the death of a plaintiff does not cause the suit to abate if the cause of action survives. But within one year of the death of the plaintiff or within such time as the court may in its discretion for “good reason” determine, an application must be made for the legal representative of the deceased plaintiff to be made a party. The “good reason” therefore relates to application for extension of time to join the plaintiff’s legal representative to the suit.Secondly, if no such application is made within one year or within the time extended by leave of the court, the suit shall abate. Where a suit abates no fresh suit can be brought on the same cause of action.Thirdly, the legal representative of the deceased plaintiff may apply for the abated suit to be revived after satisfying the court he was prevented by “sufficient cause” from continuing with the suit. The effect of an abated suit is that it ceases to exist in the eye of the law. The abatement takes place on its own force by passage of time, a legal consequence which flows from the omission to take the necessary steps within one year to implead the legal representative of the deceased plaintiff.” 24.Thus, guided by the Appellate decisions above, besides a host of others of various courts, this court is of the humble opinion that the plaintiff ought to have applied for the revival of the instant suit and after the order is granted then she would pray for substitution and setting aside of the Bill of Costs if need be. Be that as it may, the applicant lumped the three substantive prayers in the same application. Under article 159(2)(d) of the Constitution this court exercises its discretion to determine all the prayers in this one application at once. 25.The second preliminary issue is the prayer that the Bill of Costs filed but not yet taxed be set aside. It is not in dispute that after the Judge noted the matter had abated he ordered that the Applicant pays the costs of the suit. Following the order being made the Respondents filed a Bill of Costs about a month later. The Bill was about to be taxed when the instant application was filed. Then the applicant prays that the Bill of Costs be set aside or vacated. 26.In my humble view the prayer above premature and misconceived. It was made on an issue that no adverse order had already been made: the court had not made the taxation. Again, there was no law or reason to bar the Respondents from filing the Bill of Costs and urging it as they did because on 17th February 2026 the court made an award for payment of costs of the suit by the applicant, and their quantum was not determined. Therefore, the party was perfectly in order to file the Bill of costs as long as the order of abatement and costs had neither been set aside nor varied. 27.This court now turns to the main issues in controversy herein. The issues that arise for determination herein are: whether the suit herein, which had abated should be revived or reinstated; whether the applicant should be allowed to be substituted in place of her deceased husband, in her capacity as a legal representative of his Estate; whether the order costs awarded to the Respondents following the abatement of the suit should be set aside and; who to bear the costs of the application. 28.In determining the issues sequentially, I have carefully analyzed the application in its totality, the response thereto, the submissions of the parties as per the court record, and the law. 29.On whether the suit should be revived or reinstated, the applicant has moved this court that it makes the orders. The law regarding the death of a party and his substitution thereof if the suit survives the deceased is Order 24 Rule 3 of the Civil Procedure Rules 2010. It provides:(1)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.(2)Where within one year no application is made under sub rule (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. 30.On abatement of suits and its effect or dismissal, Order 24 Rule 7(2) of the Civil Procedure Rules, 2010 however empowers the court to reinstate any that has abated provided an applicant who seeks the reinstatement proves that there is sufficient cause for not acting within a year to effect the substitution. It provides as follows:“(2)The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the trustee or official receiver in the case of a bankrupt plaintiff may apply for an order to revive a suit which has abated or to set aside an order of dismissal; and, if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall revive the suit or set aside such dismissal upon such terms as to costs or otherwise as it thinks fit. 31.That being so, the Court is clothed with discretion to consider the reason advanced by any party on a case by case basis and grant or refuse a prayer for reinstatement. Thus, in Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Ltd & 2 others [2017] eKLR the Court of Appeal extensively discussed the process that must follow following the death of a plaintiff in a suit the court also held that the applicant had to demonstrate that he/she had sufficient cause in delaying the prosecution of the matter. 32.This Court then is obligated to consider whether the applicant followed the process after the death of her husband, the then Applicant in the Originating Summons. It is not in disputed that the applicant’s husband had instituted a suit against the respondents. He died on 7th February 2024. The fact of the then plaintiff’s death was brought to the attention of the court on 6th November 2025. At this point, the plaintiff’s counsel informed the court that the deceased’s death certificate had since been obtained. On 17th February 2025, the suit was marked as having abated and thereafter the court granted costs to the respondents. On 7th March 2025, the respondents ‘bill of costs was fixed for taxation on 15th May 2025 before the deputy registrar. 33.Further, on 24th June 2025, the counsel for the plaintiff told the court that he had instructions to file an application for a limited grant ad litem for purposed of substituting the deceased within the applicant herein. The taxation was fixed for 22nd July 2025 and the applicant was granted more time to apply for substitution. The instant application was filed on 14th July 2025, a week before the date fixed for the taxation. To the application was an annexture of both the Certificate of Death of the Plaintiff and the Grant of Ad Litem issued on 19th June 2025, less than a month from the time of filing. 34.From the above outlined timeframe, the abatement of the suit is not disputed. What is in controversy is whether the court should give due weight of the reasons advanced for failure to act within the stipulated timelines to revive the suit. 35.The applicant stated that following the death of her husband who was the breadwinner of the family she became unwell, and developed a chronic illness. Consequently, she crossed over to Tanzania where she sought traditional treatment for a period of over eight (8) months during which, the suit abated. The applicant swore an affidavit deponing these facts. There was no corresponding or other supporting evidence. Her claim is hotly contested by the Respondents, with the argument that it was not clear whether the applicant was in /Tanzania all along and even whether she was unwell all that time. Further, that at one time her counsel sought time to seek instructions on substitution and he did not act hence the abatement. 36.This court has considered the clashing standpoints. It is indeed alive o the fact that sufficient cause has to be shown by an applicant and that under Section 107 of the Evidence Act, the burden lies on the applicant to prove her claim. The court is alive to the fact that loss of a spouse, especially if he/she was loved whether deeply or shallowly, can cause a very a deeply emotional destabilization and pain on the surviving one. It is not easy for a family to bounce back immediately upon the loss of a spouse or breadwinner after the loss. Some people may mourn for a few months but others may mourn for ages. Loss of a loved one should not be gainsaid by any rational human being. It is possible that the applicant suffered an illness. In fact other spouses even die or get stroke due to the shock and trauma. It is possible thus that the applicant may have crossed the border to Tanzania just to seek emotional treatment and try to accept the loss. I am persuaded the applicant may have been in Tanzania for treatment. 37.Furthermore, this Court notes that the applicant tried to swiftly move the Court, from the time the Grant Ad Litem was issued to the instant application. Moreover, she took action to obtain the requisite document or authority within four months of abatement of the suit. The court considers the period not so inordinate as to warrant denying her opportunity to have the suit revived and prosecuted if substitution merits, more so considering her circumstances against the backdrop of Article 159 (2) (d) of the Constitution as well as the overriding objectives of justice. Accordingly, the court does not see the point of driving away he applicant who has lost a spouse about a year before an application of this nature from the seat of justice hence giving her the possibility of eternally losing chance to urge her deceased husband’s estate’s rights bearing in mind the effect of Order 24 Rule 7 of the Civil Procedure Rules 2010, on account of a four 4 months delay. 38.In Joesph Kirui v Said Kettany [2021] KECA 093 KLR, the court of appeal reinstated a suit that following an application made by the applicant made 6 ½ years after the death of the deceased. The court was satisfied that the applicant had made serious efforts to trace those concerned with the estate of the deceased but such efforts were in vain. 39.In Rono v Rono & 2 others (Environment & Land Case 18 of 2022) [2023] KEELC 20 (KLR) (16 January 2023) (Ruling) the court observed that,15.In this case, the chronology of events is that the plaintiff died on August 26, 2017, suit was marked as abated on November 5, 2018 while grant of letters of administration issued on August 9, 2018. It is clear that grant was issued just before the suit abated automatically on August 26, 2018. However an application for substitution was not made within one year after death of plaintiff hence the present application for enlargement of time to revive suit and substitute deceased plaintiff.16.Therefore the answer to the first question is in the affirmative, the applicants have sought for enlargement of time.17.Have they proved sufficient cause from continuing suit? The applicants averred that the bank’s procedures in accessing funds in deceased account, led to delay in continuing with the suit. That due to lack of funds they were unable to instruct their advocates accordingly. The application for revival of suit and substitution was filed on November 19, 2018, 50 days after suit automatically abated and the application for enlargement of time to revive and substitute filed on September 18, 2022, which is approximately 4 years after suit abated atomically. The reason for delay as advanced, by the applicant’s advocate is inadvertent mistake on their part which ought not to be visited on their client.Bearing in mind the reason and period for delay as advanced by the applicants, I wish to cite the Court of Appeal decision in the case of Joseph Kirui v Said K Keitany (2021) eKLR where the Court invoked the provision for Article 159 of the Constitution of Kenya and proceeded to allow an application to revive an abated suit filed after 6 1/2/ years from date of death of deceased.In the circumstances, I will exercise discretion in favour of the applicants and allow for revival of the suit and subsequent substitution of deceased plaintiff with the applicants herein, who are undoubtedly representatives of deceased estate. This will allow the applicants an opportunity in having their day in court and in the long run substantive justice and fairness will prevail. 40.Accordingly, prayer 3 as set out in the application is hereby allowed. The suit is hereby revived. That being so, it follows that the orders of 17th February 2025 on abatement and payment of costs is hereby set aside. This then turns me to the next issue as to whether to substitute the applicant or no. 41.On whether the applicant should be substituted in place of her deceased husband, I have noted above that the applicant obtained a limited grant of letters ad litem for purposes of prosecuting the suit or 42.Originating Summons, on 19th June 2025. She annexed it to the application. She moved the court over the prayer in a month after obtaining it. It shows she is not a busy body in the application and is keen to proceed with her deceased husband’s estate’s matter. This court grants her the prayer. She is hereby substituted in that behalf. She should file the requisite amendment to reflect the orders granted, within the next fourteen (14) days and serve the amended Originating Summons on the Respondents. 43.On the overall, Section 27 of the Civil Procedure Act provides that costs follow the event. Even then the judge retains the discretion to award costs to whomsoever he/she wills, other than the successful party, but with reasons. In the instant matter, for reasons that the Applicant filed the application for substitution beyond the requisite period, she shall bear the costs of the application. 44.The matter shall be mentioned on 16th July 2026 for confirmation of compliance with Order 11 of the Civil Procedure Rules. 45.Orders accordingly. RULING DATED SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 16TH DAY OF JUNE, 2026.HON DR. IUR NYAGAKAJUDGEIn the presence ofOseno for the ApplicantOtieno David holding brief Jura for the Respondent