Gikingi v Muthangato & another (Environment and Land Case 5 of 2015) [2026] KEELC 4804 (KLR) (27 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC CASE NO. 5 OF 2015 (OS)** **NJIRU GIKINGI PLAINTIFF/RESPONDENT** **VERSUS** **IRERI MUTHANGATO…** **DEFENDANT** **GITHUMBI NJERU** **APPLICANT** **RULING** 1. Vide an application dated 15/07/2025, the Applicant herein is seeking orders inter alia that the suit which had abated against the Defendant be revived, that time be extended for substitution of the late Ireri Muthangato, and that the deceased Defendant be substituted with Joshua Njeru Ireri and the costs of the application be provided for. 2. The application is based on grounds on the face of the application supported by the affidavit of the Applicant, Githumbi Njeru sworn on 15/07/2025 wherein he stated that the late Ireri Muthangato died on 20/04/2020 and at the time of his death, the suit herein had been determined. He averred that it only came to his attention that the defendant had died when the suit came up for mention to take directions in respect of his application to set aside judgement. He stated that Joshua Njeru Ireri is the son and legal representative of the estate of the deceased. 3. He stated that the case had been heard and determined but that the judgement delivered was against him and that he stood to lose his land despite not having been a party to the suit. He further stated the plaintiff had obtained orders cancelling his titles without consulting and that the Court directed him to substitute the deceased defendant even if the orders sought did not directly affect him. He stated that it took some time to obtain the defendant’s death certificate from his family and for a member of the family to agree to obtain letters of administration ad litem. That by the time he obtained the grant ad litem for the defendant, a period of one year had lapsed. He urged the Court to allow the application. He attached to the application a copy of the grant ad litem, the judgement dated 09/07/2020 and an Order dated 11/05/2021. 1. The plaintiff in opposition to the application filed grounds of opposition dated 20/05/2025. He stated that the application did not disclose a reasonable cause of action, it was scandalous, frivolous and vexatious. He stated that the application may prejudice, embarrass or delay the fair trial of the suit and that it was a belated afterthought. He averred that the application was otherwise an abuse of the court process and that there had been unexplained and inordinate delay by the applicant. 2. When the application came for directions, the parties agreed to have the application canvassed by written submissions. The Applicant filed his submissions dated 10/12/2025 through the firm of Beth Ndorongo & Company Advocates. 3. The applicant submitted that the suit was filed by the plaintiff against the defendant by way of Originating Summons and judgment was delivered on 09/07/2020 in favour of the plaintiff, declaring that the defendant’s right to recover the suit property had been extinguished and that the plaintiff was entitled to be registered as proprietor of Title No. Nthawa/Siakago/1683 asa against the deceased defendant. The applicant averred that at the time the suit was filed however, the suit property was already registered in his name, having been registered on 18/12/2014, and that he was never informed of the existence of the suit. 1. He averred that he only learnt of the suit upon being summoned by the Land Registrar, Mbeere, through a letter dated 19/01/2022 pursuant to an order issued on 11/05/2021 requiring him to surrender the original title deeds derived from the subdivisions of the suit land. The applicant contended that the defendant died on 20/05/2020, before delivery of judgment on 09/07/2020, and that the Court was not informed of the death of the defendant. Further, an order dated 11/05/2021 was also issued without disclosure that the defendant was deceased and that the suit land did not belong to the defendant. The applicant explained that upon learning of the death of the defendant, he moved with speed to trace the legal representative and to facilitate the obtaining of a limited grant ad litem in Embu CMC Misc. Succession Cause No. E021 of 2025, and thereafter filed the present application. 2. The applicant submitted that the legal representative declined to swear the supporting affidavit to the instant application, necessitating the filing of the application by the applicant himself. He averred that the delay in bringing the present application had been sufficiently explained. He further submitted that he wishes to set aside the judgement delivered following the proceedings between the plaintiff and the defendant hence the cause of action survives. He submitted that this Court has unfettered discretion guided by the objectives of the Civil Procedure Act and Article 159 of the Constitution. 1. The applicant urged the Court to grant him an opportunity to be heard and find that being the registered owner of the suit property, he ought to have been involved as a party from the inception of the suit, and that the judgment and subsequent orders are adverse to his interests. He averred that the execution of the said orders against him would amount to condemning him unheard, in violation of the Constitution and the principles of natural justice. The applicant further submitted that the plaintiff misled the court to his detriment as the judgement sought to be set aside does not affect the deceased defendant. He urged that the application be allowed. 2. The 1st respondent filed his submissions which are undated on 04/11/2025 through the firm of Eddie Njiru & Company Advocates. 3. The Respondent relied on Order 24 Rule 4 of the Civil Procedure Rules and submitted that the Defendant died on 20/04/2020 and that no application for substitution was made within one year as required by law. That consequently, the suit against the deceased Defendant had abated and the present application had been filed outside the statutory period. He submitted that the Applicant had not reasonably explained or offered sufficient cause to warrant the Court to exercise its discretion and extend time for substitution of the defendant. 4. The Respondent further relied on the decision in Kenya Farmers’ Co-operative Union Ltd v Charles Murgor (deceased) t/a Kiptabei Coffee Estate (2005) eKLR, where the Court held that it had no jurisdiction to order substitution where a suit had already abated by operation of law, nor to hear and determine a suit that had so abated. The Court further held that any substitution, hearing, judgment and decree made after abatement were null and void, as once a suit had abated it had ceased to exist and there was no suit upon which a trial could be conducted or a judgment pronounced. He urged that the instant application was devoid of merit and should be dismissed with costs. 1. The issues for determination are: 1. Whether the suit that has abated against the Defendant should be revived; 2. Whether time should be extended for the substitution of the late Ireri Muthangato; and 3. Whether the late Ireri Muthangato should be substituted with Joshua Njeru Ireri, 2. On the first issue, the applicable law is Order 24 Rule 4 and Order 24 Rule 7(2) of the Civil Procedure Rules. Under Order 24 Rule 4(3), where no application for substitution is made within one year of the death of a defendant, the suit abates as against the deceased defendant. Order 24 Rule 7(2) however vests the Court with discretion to revive a suit which has abated upon sufficient cause being shown. 3. It is not in dispute that the Defendant died on 20/04/2020. It is also not in dispute that judgment was delivered on 09/07/2020 in favour of the Plaintiff, who had brought a claim for adverse possession over land parcel number Nthawa/Siakago/1683. At the time the judgment was delivered, the Defendant was already deceased and the Court had not been notified of that fact. The suit against the deceased Defendant consequently abated by operation of law on 20/04/2021, there having been no application for substitution within the statutory period. 1. From the material placed before the Court, it is evident that the Applicant was not a party to the suit which culminated in the judgment of 09/07/2020. He is a third party who asserts that he was the registered proprietor of the suit land at the time the suit was instituted and that the proceedings were conducted without his participation, yet the resulting judgment had the effect of depriving him of his proprietary interest. The record shows that the Applicant was registered as the proprietor of land parcel Nthawa/Siakago/1683 on 18/12/2014, while the present suit was filed on 15/01/2015. No explanation has been offered as to why the Applicant, being the registered proprietor at the time, was not joined in the proceedings. 2. The Applicant explained that he only became aware of the suit on 19/01/2022 when he was summoned by the Land Registrar pursuant an order issued on 11/05/2021 to surrender the original titles to the resultant subdivisions of the suit land. He further explained that he subsequently discovered that the Defendant had died before the delivery of judgment and that it took time to obtain the death certificate and a limited grant ad litem to have the deceased substituted in the suit, due to lack of cooperation from the deceased’s family. The Applicant has expressed his intention to have the ex parte judgment set aside and to be accorded an opportunity to be heard. He filed the present application on 24/07/2025 and attributed the delay to the time taken to discover the proceedings and to secure the limited grant to enable him seek the substitution of the deceased. In the circumstances of this case, and guided by Order 24 Rule 7(2) of the Civil Procedure Rules, the Court is satisfied that sufficient cause has been demonstrated to warrant the revival of the suit. 1. The Court also finds it just to grant an extension of time to allow for the substitution of the late Ireri Muthangato. The Court is also satisfied that Joshua Njeru Ireri, is the legal representative of the estate of the late Ireri Muthangato and is an appropriate party to be substituted as Defendant. Accordingly, the application is allowed in its entirety. 2. Costs of the application to be in the cause. **DATED, DELIVERED AND SIGNED AT EMBU THIS 27TH DAY OF JULY, 2026.** **HON. E.C CHERONO** **ELC JUDGE, EMBU** In the presence of; 1. M/s Beth Ndorongo for the Applicant 2. Respondent/Advocate-absent 3. Ruth C/A