https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4359

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELC CASE NO. 20 OF 2018** **AGNES KALUKI KASYOKI (Suing as the Administrator and the Legal Representative of the Estate of the KASYOKI MALITI –** **Deceased) ..............................................................................................PLAINTIFF** **-VERSUS-** **MARY KIMULI …………………………………………………...DEFENDANT** **-AND-** **NDAMBUKI TULI (Suing as the Administrator and the Legal Representative of the Estate of the MARY KIMULI – Deceased) ...........................APPLICANT** **RULING** 1. The Applicant filed the Notice of Motion dated 10th March, 2025 seeking the issuance of the following orders: - 2. **THAT leave do issue for the firm of STANLEY NTHIWA & COMPANY ADVOCATES LLP to come on record for the Defendant.** 3. **[*SPENT*]** 4. **THAT the Court be pleased to set aside all the proceedings, judgment dated 15/12/2021 and all other consequential and or subsequent orders and or decree.** 5. **THAT a declaration do issue that the suit herein abated on the 3/2/2020 thus the proceedings herein, the resultant judgment and decree are null and void and the file herein be closed forthwith.** 6. **THAT costs of this application be awarded to the Applicant.** 7. The application is premised on the grounds appearing on its face together with the supporting affidavit of Ndambuki Tuli sworn on 11th March, 2025. The Applicant averred that he is the personal representative of the Estate of Mary Kimuli Ngao (Deceased), the Defendant herein. He contended that the Defendant died intestate on 3/2/2019 and no application was made to cause the legal representative of the Estate to be made a party to the suit. 8. It was the Applicant’s contention that on 19/4/2021, this court directed that the matter proceeds as an undefended cause when by then, the Defendant was long dead and buried. That the matter proceeded ex parte and a judgment was delivered by this court on 15/12/2021. The deponent added that even though the beneficiaries of the Defendant were cited in Makueni CM P&A No. 182 of 2020, no legal representative was appointed to represent the Defendant’s estate. 9. The deponent averred that this court was not seized of the proceedings in the citation in Makueni CM P&A No. 182 of 2020 as the jurisdictions of the two courts are separate. It was further averred that unless the orders sought are granted, the estate of the defendant will suffer substantial loss in the event the Plaintiff executes the judgment. 10. Opposing the application, the Plaintiff/Respondent filed a replying affidavit sworn by herself on 18th November, 2025. She averred that the Applicant had not made an application for substitution of the deceased Defendant and hence the law firm of Stanley Nthiwa & Co. Advocates cannot come on record for a deceased party. 11. The deponent contended that a statement of defence was filed by the Defendant on 19th June, 2018 but the court seems to have recorded the date as 19th June, 2019 in the judgment. It was her case that the suit had not abated by the time the representatives of the Defendant’s estate were being cited since the matter was active in court and directions had been given for the matter to proceed as undefended. The Respondent contended that the application cannot be allowed because this court cannot exercise appellate jurisdiction on its own final judgment. She stated that the application is misplaced, that it is brought to late in the day and that it ought to be dismissed with costs. 12. The Applicant filed a further affidavit that was sworn on 10th March, 2026. He averred that the firm of Stanley Nthiwa & Co. Advocates has sought leave to come on record pursuant to the ruling of this court delivered on 26/4/2023. That there has been no instance of substitution of the Defendant and the firm has sought to come on record for the Applicant. He added that the court has no jurisdiction to order for substitution of parties where the suit has already abated unless the parties first apply for revival of the suit. The deponent stated that none of the parties have applied for revival. 13. The Applicant contended that the firm of Stanley Nthiwa & Co. Advocates has properly applied to come on record post judgment in accordance with the provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010. He further contended that the citation order that was made on 4/2/2021 directed that the Plaintiff petitions for letters of administration on behalf of the estate of the Defendant which she never did and even if she were to do so, it would be of no consequence as the suit herein had already abated. 14. The Applicant averred that he has locus standi to institute these proceedings being the personal representative of the estate of the deceased Defendant. He further averred that the present application had been brought without undue delay after learning about the existence of the subject ex parte judgment. 15. The application was canvassed by way of written submissions. In the Applicant’s submissions dated 10th March 2026, Counsel identified two issues for determination namely: - 16. *Whether the suit abated and if so what are the legal consequences; and* 17. *Whether the firm of Stanley Nthiwa & Co. Advocates LLP is properly on record for the Applicant.* 18. Relying on the provisions of Order 24 Rule 4 of the Civil Procedure Rules, Counsel contended that the suit abated by operation of law where no application for substitution was made within one year of the death of the Defendant which had occurred on 3/2/2019. Counsel argued that once a suit abates, any further proceedings conducted are null and void as the suit is deemed as non-existent unless revived. Reliance was placed on the case of **Mbaya Nzulwa v Kenya Power & Lighting Co. Ltd [2018] eKLR**. 19. Reliance was also placed on the provisions of Order 10 Rule 11 for the submission that this court has discretion to award the orders sought. 20. Submitting on the next issue, Counsel contended that the firm of Stanley Nthiwa & Co. Advocates LLP never came on record for the Defendant but has sought to come on for the Applicant who was never represented in the matter. Counsel urged the court to allow the application with costs. 21. In the Respondent’s submissions dated 2nd February 2026, Counsel submitted that this court does not have the power to set aside its own proceedings and/or judgment as to do so would amount to the court exercising supervisory powers over itself. Counsel further submitted that a declaratory order is a substantive order which can only be granted in a main suit and not in an application. To buttress the Respondent’s submissions, Counsel relied on the case of **Wako Adan & another v Phyllis Wanjiru Mwangi [2020] eKLR**. 22. Having considered the application, the replying affidavit and the rival submissions, three issues arise for determination: - 23. ***Whether the firm of Stanley Nthiwa & Co. Advocates LLP has properly applied to come on record for the Defendant;*** 24. ***Whether the suit herein abated on 3/2/2020;*** 25. ***Whether the subsequent proceedings and ex-parte judgment dated 15/12/2021 ought to be set aside.*** 26. The governing law relating to a change of advocates when a judgment and decree have been issued is set out under Order 9 Rule 9 of the Civil Procedure Rules, 2010. It provides as follows: - **When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—** * 1. **upon an application with notice to all the parties; or** 2. **upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.** 1. Pursuant to the above provisions, it is apparent that the Applicant as the legal representative of the estate of the deceased, has complied with Order 9 Rule 9 (a) of the Civil Procedure Rules. Notice of the intention to change advocates was served upon the Respondent’s advocates vide the instant application. The firm of Stanley Nthiwa & Co. Advocates has therefore properly applied to come on record for the Defendant. 2. Regarding the second issue, it is an undisputed fact that Mary Kimuli, the Defendant herein, passed away on 3/2/2019. The Applicant produced a copy of the death certificate as Exhibit “NT-2”. The provisions of Order 24 Rule 4 of the Civil Procedure Rules outline as follows: - 3. **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.** 4. **Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.** 5. **Where within one year no application is made under subrule (1), the suit shall abate as against the deceased defendant.** 6. It is evident that no application was made for substitution of the deceased Defendant with the legal representative of the estate of the deceased within one year of her death. In accordance with Order 24 Rule 4 of the Civil Procedure Rules, the matter herein automatically abated on 2/2/2020 by operation of law. 7. Where does that leave the proceedings of court conducted after 2/2/2020? In answering the third question on whether the Applicant has met the threshold for setting aside of the ex-parte judgment of 15/12/2021, the provisions of Order 12 Rule 7 of the Civil Procedure Rules which outlines as follows: - **‘Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.’** 1. Again, under Order 51 Rule 15 of the Civil Procedure Rules, the law sets out as follows: - **‘The court may set aside an order made ex parte.’** 1. Being a discretionary power, the Court of Appeal observed as follows in **CMC Holdings Ltd v James Mumo Nzioki [2004] eKLR** with regard to the setting aside of *ex-parte* orders: - ***“Our view is that in law, the discretion that a court of law has, in deciding whether or not to set aside ex parte order such as before us was meant to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. It would in our mind not be a proper use of such a discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would in our mind be wrong in principle.”*** 1. The overriding objective under the Civil Procedure Act is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. The discretion of this Court under Section 3A of the Act binds this Court to promote the ends of justice in civil litigation. 2. Based on the record and pleadings herein, the legal representative of the estate of the Defendant was not made a party to the proceedings. Again, the question as to whether or not any of the beneficiaries of the estate of the deceased Defendant is the valid legal representative was not raised before this court for determination in accordance with Order 24 Rule 5 of the Civil Procedure Rules. Clearly, the cardinal principle of natural justice was violated against the estate of the deceased. 3. In the case of **James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] eKLR**, the Court of Appeal observed as follows: - ***“The court was therefore not expected to shut its eyes to the glaring irregularities we have pointed out above regarding the default judgment. The former Court of Appeal for Eastern Africa, in Ali Bin Khamis v Salim Bin Khamis Kirobe & Others, [1956] 1 EA 195 expressed the view that where an order is made without service upon a person who is affected by it, procedural cockups will not deter the court, ex debito justitiae, from setting aside such an order. Briggs, JA., with whom Worley P. and Sinclair, VP. concurred, stated thus:*** ***“On the appeal before us Mr. Khanna relied on Craig v Kanseen [1943] 1 All ER 108 as showing that where an order is improperly made without serving a person known to be affected by it and having a statutory right to be served before its can be made, the order is a nullity in the sense that it must be set aside ex debito justitiae, and that in cases of nullity procedure is unimportant, since the Court has inherent jurisdiction to set aside its own order. I accept these principles, as laid down by Lord Greene, MR.” (Emphasis added).”*** 1. The Court of Appeal went on further to declare as follows: - ***“In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. (See Onyango Oloo v Attorney General [1986-1989] EA 456).”*** 1. The doctrine of *ex debito justitiae* was discussed in the case of **Cause Impact Limited v Towfiq Trust Registered Trustee & 2 others [2022] KEBPRT 851 (KLR)** in the following terms:- ***“Ex-debito justitiae is defined as an obligation arising out of the justice of the matter where judicial review is available. The principle of ex-debito justitiae is founded on a recognition of a debt that the justice delivery system owes to a litigant to correct an error in a judicial dispensation. Its application by the very nature of things cannot be made to depend on varying perceptions of legal omissions and commissions but such recognition of the debt which have the potential of opening new vistas of exercise of jurisdiction to relook concluded cases must on surer foundations which have been discerned and expressed therein.”*** 1. In **Isaacs v Robertson [1984] 3 All E.R. 140 at 143**, Lord Diplock aptly held as follows: - ***“[T]here is a category of orders of such a court which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity and give to the judge a discretion as to the order he will make. The judges in the cases that have drawn the distinction between the two types of orders have cautiously refrained from seeking to lay down a comprehensive definition of defects that bring an order into the category that attracts ex debito justitiae the right to have it set aside, save that specifically it includes orders that have been obtained in breach of rules of natural justice.”*** 1. The Respondent contended that Counsel for the Defendant had intimated to the court that the Defendant had already abandoned the case and expressed her intention to resolve the dispute through the Kamba traditional oath known as ‘Kithitu’. It must be understood that the said information and or allegations were made from the bar. At no point was the statement of defence dated 19th June, 2018 withdrawn or the suit compromised. 2. Overall, this court cannot stand aside and countenance the execution of an irregular judgment which was obtained when the suit had already abated and without according the legal representative of the Defendant’s estate a fair hearing. The subsequent proceedings occurring after 2/2/2020 were therefore null and void. 3. The upshot of the matter is that the application is merited and succeeds in the following terms: - 4. **Leave is hereby granted to the firm of STANLEY NTHIWA & COMPANY ADVOCATES LLP to come on record for the Defendant.** 5. **An order is hereby issued that the suit herein abated on the 3/2/2020 thus the proceedings herein, the resultant judgment and decree are null and void and the file herein be closed forthwith.** 6. **An order is hereby issued setting aside the proceedings and judgment dated 15/12/2021 and all other consequential and or subsequent orders and or decree.** 7. **Costs of the application are awarded to the Applicant.** **................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 14TH DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Mr. Muendo for Mr. Muthiani for Plaintiff/Respondent. Mr. Muthui for Mr. Wekesa for Defendant/Applicant. Court assistants – Kilonzo & Musyoki