https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4419

Kaumbutho & another v Mwarirrie (Deceased) & 2 others (Environment and Land Case 243 of 2015) [2026] KEELC 4419 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4419 (KLR) Republic of Kenya In the Environment and Land Court at Embu Environment and Land Case 243 of 2015 EC Cherono, J July 9, 2026 Between Alexander Muthee Kaumbutho 1st Plaintiff Angela Ciumwari 2nd Plaintiff and Murithi Mwarirrie (Deceased) 1st Intended Respondent Timothy Nguu Runyenj 2nd Intended Respondent Mary Muthoni Ireri 3rd Intended Respondent Ruling 1.Vide the Notice of Motion application dated 27/01/2026, the Applicants are seeking interalia:a.That this Honourable Court be pleased to extend the time within which the deceased 1st Respondent, Murithi Mwaririe, should have been substituted.b.That the 1st Respondent herein Murithi Mwaririe be substituted with Mary Muthoni Ireri and the pleadings be amended so as to join the said Mary Muthoni Ireri as the legal representative of the estate of Murithi Mwaririe for hearing and determination on merits.c.That this Honourable court be pleased to set aside orders issued on 5th June 2025 dismissing this matter and revive the suit as against the 1st Respondent and reinstate the suit against the 2nd Respondent.d.That 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 2nd Applicant, Angelina Ciumwari sworn on 27/01/2026. She deposed that the 1st Respondent died on 30/09/2020 while this matter was actively in court. She averred that the intended 1st Respondent filed a citation in the High Court at Embu and was issued with letters of administration vide Embu High Court Misc Succession No. E007/2022 on 07/02/2023. She stated that despite being granted the letters of administration, the Respondents did not file an application for substitution of the deceased or inform the Court that they had obtained the letters of administration. She averred that her former advocate requested for time to file the application for substitution instead, but the suit was dismissed on 05/06/2025, her advocate having failed to file the application and the suit having abated against the deceased Respondent. 3.She further averred that she is willing to proceed with the case and that its dismissal will cause irreparable harm to her. She stated that she and the 1st Applicant are still in occupation of the suit lands and their claim has survived the death of the registered proprietor. She averred that the delay in filing the application was occasioned by lack of resources to appoint a new advocate after a disagreement with previous counsel. That the suit concerns Land Parcel No. Kagaari/Kigaa/43 and the cause of action survived the 1st respondent. The applicant therefore seeks the substitution of Mary Muthoni Ireri in place of Murithi Mwaririe as the legal representative of his estate. She annexed to the supporting affidavit a copy of the death certificate of the deceased and a copy of limited grant of letters of administration ad litem in respect of the estate of the deceased. 4.The intended 1st Respondent, Mary Muthoni Ireri in opposition to the application filed a replying affidavit dated 12/03/2026. She deposed that the Applicants failed to apply for substitution within one year of the death of the 1st Respondent as required under Order 24 Rule 4 of the Civil Procedure Rules, with the result that the suit abated automatically by operation of law and no fresh suit can be instituted on the same cause of action. She deposed further, that the Applicants were aware of the deceased's death, yet took no steps to seek substitution even after a legal representative was appointed in 2023, thereby demonstrating deliberate inaction, laches and inordinate delay. She maintained that the obligation to seek substitution lay with the Applicants, that the explanation advanced for the delay is unsupported by evidence and does not constitute sufficient cause for revival or extension of time under Order 24, and that despite being served with a Notice to Show Cause, the Applicants failed to respond leading to the dismissal of the suit. 5.It was further averred that allowing the application would occasion serious prejudice to the intended 1st Respondent and that any mistakes by the Applicants' former advocates should not be visited upon them. The intended 1st Respondent also contends that the application is a fishing expedition in view of the pending application for revocation of grant in Embu High Court Succession Cause No. 14 of 2019 concerning the suit land, rendering the present suit sub judice. It is further asserted that the timelines under Order 24 are mandatory and cannot be cured under Article 159 of the Constitution. That reinstatement would offend the principle of finality of litigation, that the claim for adverse possession herein would not succeed since the deceased was registered as proprietor on 25/09/2009 while the suit was filed on 9/11/2009. She maintained that the Applicants' current advocate previously held brief for their former advocate during the 1st Respondents burial proceedings, thereby rendering the explanation for the delay self-defeating. 6.She annexed to the replying affidavit a copy of an application seeking to have the deceased buried on the suit land, a copy of a limited grant of letters of administration ad litem in respect of the deceased’s estate, a copy of a notice to show cause and summons for revocation of grant in Misc Succession Cause No. 14 of 2019. 7.The 2nd Applicant, Angelina Ciumwari in response filed a supplementary affidavit dated 19/03/2026. She denied that there was any deliberate delay in filing the instant application and averred that the deceased Respondent’s counsel notified the Court of the demise of his client and undertook to substitute the deceased, with the matter being mentioned several times to confirm such substitution. The Applicant stated that her advocate wrote several letters to the Respondents counsel following up on the substitution. That the Respondents' counsel failed to disclose that they had obtained the grant of letters of administration or move the court accordingly despite obtaining them on 07/02/2023. 8.It was further deponed that due to the Respondents' delay and lack of cooperation, the Applicant's advocate sought to pursue the substitution but was unable to do so since they could not file the relevant application without the deceased’s death certificate and chiefs letter despite requesting them from the surviving Respondent. It was averred that the Respondents highly contributed to the delay in filing the instant application coupled with the frustration by the administration and the deceased family. She attached a bundle of letters and the petition for grant of letters of administration in the estate of the deceased. 9.When the application came up for directions, the parties agreed to proceed by way of written submissions. 10.The Applicants filed submissions dated 20/04/2026 through the firm of F.Kimanzi & Associates Advocates. They submitted that the suit should be reinstated and time extended for substitution of the deceased Respondent. They argued that the delay was largely caused by the Respondents’ counsel, who had committed to substitute the deceased but repeatedly sought extension of time and failed to act despite obtaining letters of administration. They averred that they could not initiate substitution themselves since they lacked the necessary documents and leave had already been granted to the Respondents’ counsel. The applicants invoked Order 24 Rule 7(2) of the Civil Procedure Rules, which empowers the court to revive an abated suit if sufficient cause is shown. They emphasized that the cause of action survived the death of the 1st Respondent, as the Applicants remain in occupation of the land and their claim for adverse possession is still valid. They cited the cases of Ndambo v Ndambo [2022] KEHC 14723 (KLR) and Maina Johana Miano v Leah Wanyara Gichohi & another [2019] KECA 223 (KLR) among others to support their submissions. 11.The Respondents filed submissions dated 30/04/2026 through the firm of Mugambi Njeru and Company Advocates. They submitted that the suit abated by operation of law under Order 24 Rule 4(3) of the Civil Procedure Rules since no substitution was made within one year of the 1st Respondents death on 30/09/2020. They argued that by October 2021 the suit had already abated, and abatement is automatic once statutory timelines lapse and not discretionary, as was held in the case of in Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR. They contended that revival under Order 24 Rule 7(2) requires proof of sufficient cause, which must be credible and evidential. Citing the case of Ivita v Kyumbu [1984] KLR 441 and Said Sweilem Gheithan Saanum v Commissioner of Lands [2015] eKLR, they argued that the Applicants’ explanation was weak, as they were aware of the 1st Respondents death in 2020 as they participated in burial related proceedings yet waited until 2026 to seek revival of the suit. 12.The Respondents further submitted that the delay of five to six years was inordinate and inexcusable. They noted that even after the grant was issued in 2023, the applicants took no action. They argued that reopening the suit after years of dormancy would prejudice them as they have arranged their affairs on the basis that the suit had legally abated, and would undermine the principle of finality in litigation. They urged that the application be disallowed. 13.I have considered the application, the affidavits filed by the parties, the rival submissions and the applicable law. The issues for determination are whether the Applicants have established sufficient cause to warrant the revival of the suit, extension of time to substitute the deceased 1st Respondent and substitution of the deceased with his legal representative. 14.Order 24 Rule 4(3) of the Civil Procedure Rules provides that where no application for substitution is made within one year of the death of a defendant, the suit abates against the deceased. However, under Order 24 Rule 7(2), the Court has discretion to revive an abated suit and extend time for substitution where sufficient cause is shown. 15.It is not disputed that the 1st Respondent died on 30/09/2020 and that no application for substitution was made within the prescribed period. The suit against the 1st Respondent therefore abated on 30/09/2021 or thereabout. The Applicants contend that following the death of the 1st Respondent, his counsel informed the Court of the death and undertook to effect substitution. The record shows that the matter was mentioned on several occasions for that purpose and that time was repeatedly extended. The Applicants have also exhibited correspondence demonstrating that their former advocate consistently followed up the issue of substitution with the Respondents' counsel. 16.It is further not disputed that Mary Muthoni Ireri obtained letters of administration ad litem on 07/02/2023. Despite obtaining the grant, no application for substitution was made. The Applicants explain that they were unable to pursue substitution independently as they lacked the necessary documents relating to the deceased's estate and reasonably relied on the Respondents' undertaking to effect the substitution. Although the Respondents argue that the duty to substitute rested solely with the Applicants, I am satisfied that the explanation offered is reasonable in the circumstances. The material before the Court demonstrates that the delay was not entirely due to the Applicants' inaction but was also contributed to by the Respondents' failure to act after obtaining the grant of representation. 17.I have also considered the prejudice likely to be suffered by the parties. The suit concerns land, and the Applicants state that they remain in occupation of the suit property. Refusing the application would permanently deny them the opportunity to have their claim determined on its merits, whereas any prejudice to the Respondents can be adequately compensated by costs. The Respondents' arguments regarding the merits of the adverse possession claim relate to the substantive suit and are not issues for determination in the present application. 18.In the circumstances, I am satisfied that the Applicants have established sufficient cause to warrant the exercise of this Court's discretion in their favour. 19.Accordingly, the Notice of Motion dated 27/01/2026 is allowed. Time for substitution is hereby extended, Mary Muthoni Ireri is substituted in place of the deceased 1st Respondent as the legal representative of his estate, the orders issued on 05/06/2025 dismissing the suit are set aside, and the suit is hereby revived. Costs shall be in the cause. DATED, DELIVERED AND SIGNED AT EMBU THIS 9TH DAY OF JULY, 2026.HON. E.C. CHERONOELC JUDGE, EMBUIn the presence of;Mr. Kiplimo H/B Mugambi Njeru for the RespondentMr. Kimanzi for the ApplicantsRuth – Court Assistant