https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5342

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELCA NO.E021 OF 2024** **EVANSON RWARA KAHORO...................................................APPELLANT** **-VERSUS-** **PETER THUKU WAITITU..............……...........................1ST RESPONDENT** **JOHN MBUTHIA WAITITU............….............................2ND RESPONDENT** **ELIZABETH NJERI WAITITU..........................................3RD RESPONDENT** **JUSTUS WAITITU THUKU..............................................4TH RESPONDENT** **THE LAND REGISTRAR NYERI.....................................5TH RESPONDENT** ***Appeal against the Ruling delivered in Nyeri CM ELC Case No. E003B of 2023 by the Hon. Alfred Kibiru on 5 June 2024.*** **JUDGMENT** 1. The Appellant herein filed this appeal against the ruling delivered on 5th June 2024 in **Nyeri CM ELC Case No. E003B of 2023** by Hon. Alfred Kibiru. 2. The Memorandum of Appeal dated 3rd July 2024 sets out the grounds of appeal, summarised as the Learned Trial Magistrate's error of fact and law in allowing the application to substitute a deceased 1st Defendant when the suit had already abated, as the 1st Defendant died on 1st September 2020. It further notes that no application for extension of time was made and that there was an inordinate delay of three years, which was not explained. 3. The Appellant’s case is that the trial court ought not to have allowed the application for substitution without first reviving the abated suit. 4. The Appellant further contends that the Learned Trial Magistrate erred both in fact and in law by permitting the application to substitute the deceased 1st Defendant, notwithstanding that the Plaintiff’s claim was predicated on spousal consent, which cannot be asserted against a deceased spouse who is unable to respond to questions concerning spousal consent. 5. It is the Appellant’s case that the Trial Court erred by allowing the prayers sought, contrary to the weight of the Appellant’s case, and by awarding the costs of the application without justification. 6. The Appellant prays that: 7. **That the appellant’s appeal be allowed with costs.** 8. **The application filed on 14 November 2023 in Nyeri ELC Case No. E003B of 2023 be dismissed with costs.** 9. According to the Record of Appeal, the genesis of the appeal is the application under Notice of Motion dated 14th November 2023, seeking an order that the 1st Defendant be substituted with Peter Thuku Waititu. The Applicant deposed in his supporting affidavit that he is the son of the 1st Defendant, Justus Waititu Thuku, who died on 1st September 2020. 10. Thus, he petitioned and obtained a limited grant, which gave him the capacity to pursue the case, and annexed the certificate of death and the limited grant issued on 16th October 2023. 11. The ruling was delivered on 5th June 2024, in which the Court found that although the Appellant herein may have good grounds to oppose the substitution, the suit before the Court and the cause of action belong to the Plaintiff. Thus, substitution can be allowed as prayed. Aggrieved by this decision, the Appellant, who is the 2nd Defendant in the trial suit, filed this appeal. 12. Parties filed their respective written submissions, which the Court has duly read and considered. **Analysis and Determination** 1. The Appeal herein concerns the substitution of the 1st Defendant in the Trial Court, who died on 1st September 2020. The suit in the Trial Court was initially instituted by the original plaint dated 15th December 2017 and filed on 18th December 2017. 2. The Appellant’s first argument is that the suit had already abated, and therefore the trial court erred in substituting the 1st Defendant. 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. The Plaintiffs in the trial court seek to have the sale and transfer of the suit property, LR. No. Chinga/Kiaguthu/514, to the 2nd Defendant declared illegal and void for lack of spousal consent from the 2nd Plaintiff. They further prayed that the Appellant herein give vacant possession and that the 1st Defendant be declared to hold the suit property in trust. 2. I note that the 1st Defendant was not the sole defendant, since the Appellant herein is the 2nd Defendant, who is still there to defend his case. Thus, the suit abated against the deceased 1st Defendant as per Order 24 rule 4(3), but proceeded against the 2nd Defendant. 3. The Court of Appeal gave directions on how to file an application to revive a suit that was abated in the case of **Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Ltd & 2 others [2017] KECA 544 (KLR)** 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. 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.”*** 1. Although the suit in the trial court remains pending, the cause of action against the 1st Defendant has been extinguished by operation of law. In my view, an application for an extension of time to substitute the deceased 1st Defendant should have been made at the outset, supported by adequate justification; subsequently, the legal representative should have petitioned to be joined to the proceedings and to revive the suit against the deceased 1st Defendant, in accordance with the spirit of the **Rebecca Mijide Case** (Supra). 2. In the present case, the legal representative sought only to be included in the proceedings, without any locus standi, and did not request an extension of time for substitution or for the revival of the suit. 3. Therefore, the current appeal has merit. The application dated 14th November 2023 ought to have been struck out, and the appeal therefore succeeds, with the trial court's decision replaced by a verdict that the application dated 14th November 2023 be and is hereby struck out, with costs. **Dated, signed, and delivered virtually at Nyeri on this 19th day of August 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Mr. MutegiH/B for Ms. Thiongo for the Appellant** **Denis - Court Assistant** **In the Absence of:** **Ms.Maina for the Respondents**