Kihara & 2 others (Suing as Administrators of the Estate of the Kihara Waithaka - Deceased) v Muthama (Environment and Land Case 62 of 2018) [2026] KEELC 3397 (KLR) (28 May 2026) (Ruling)

Kihara & 2 others (Suing as Administrators of the Estate of the Kihara Waithaka - Deceased) v Muthama (Environment and Land Case 62 of 2018) [2026] KEELC 3397 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3397 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Environment and Land Case 62 of 2018 J Omange, J May 28, 2026 Between Sarah Wamaitha Kihara 1st Plaintiff Kuria Kihara Waithaka 2nd Plaintiff Chiera Waithaka 3rd Plaintiff Suing as Administrators of the Estate of the Kihara Waithaka - Deceased and Robert Macharia Muthama Respondent Ruling 1.Sarah Wamaitha Kihara, Kuria Kihara Waithaka and Chiera Waithaka suing as administrators of the estate of Kihara Waithaka filed a suit against the Defendant whom they alleged was an owner in common with the deceased of the properties Kajiado/Ntashart/325,326,327,328,329,330,331332,333,334,335, 336,337,341342,343,345,346,347,349,350,361,361,362,363 and 55 in Kajiado county and sub divisions Kajiado/ Ntashart/ 7630,7631,7632,7633 ( hereinafter referred to as the suit properties). 2.The gist of the Plaintiffs case is that the Defendant has failed to disclose the interest of the deceased and is in the process of sub dividing and disposing of the suit properties. On 9th June 2017 the court granted injunctive orders preserving the suit properties save for Kajiado/ Ntashart/ 7631 and 7632 which the court found was registered in the name of a party who were not parties to the suit. 3.On the 15th August, 2018 an application was made to substitute Robert Macharia Muthama the Defendant, with Mary Kagure Macharia, Consolata Wangari and Joseph Muthama Macharia. The application was allowed on 22nd October 2018. A consent was recorded allowing Daniel Rono to be enjoined as an interested party and setting aside the injunctive orders in respect of Kajiado/ Ntashart/ /7633. 4.On the 9th July 2024 during the hearing of a Notice to show Cause Counsel holding brief for the Defendants informed the court that they did not have instructions from the Defendant. On a follow up mention on the 16th July 2024 the court was informed that the Defendant was yet to be substituted. After several mentions the matter was marked as abated on the 28th October 2025 in the presence of counsel for the Defendant. The Plaintiffs were not in court. 5.In the application dated 8th December 2025 the Plaintiffs/ Applicants seek the following orders:i.Temporary injunctive orders restraining the Defendant/Respondent, or any other person from dealing in any way with parcels of land Kajiado/Ntashart/326 to 362 and parcels Kajiado/Ntashart/7630 to 7633;ii.Production of official documents proving the death of the administrators;iii.Review, setting aside and vacating of the Court’s orders issued on 28th October 2025 declaring the suit abated;iv.Revival and reinstatement of the suit together with the interim injunctive orders issued preserving the suit properties. 6.The Application is premised on the grounds on its face and in the sworn Affidavit. The Applicants aver that the Court was misled into declaring the suit abated on the basis that all the administrators of the Estate of the deceased Defendant had passed away, whereas, upon conducting investigations, they established that one of the administrators, namely Joseph Macharia Muthama, was still alive. 7.They state that the Defendant died on 13th September 2017 and that Special Limited Grant of Letters of Administration ad litem was issued on 10th July 2018 appointing Mary Kagure Macharia, Consolata Wangari and Joseph Macharia Muthama as administrators for purposes of defending the suit. They further state that an application for substitution was subsequently filed and allowed, thereby properly substituting the deceased Defendant. Therefore, the order issued by this Court on 28th October 2025 declaring the suit abated was founded on erroneous information supplied to the Court and constitutes an error apparent on the face of the record warranting review and setting aside. 8.They further added that following the abatement order, there have been activities on the suit properties suggestive of imminent alienation and disposition to third parties, hence necessitating orders to preserve the suit property. 9.In a Replying Affidavit sworn by Counsel for the Defendant, the Defendants averred that they informed the court that two administrators and the only remaining administrator was not interested in the matter. She stated that the Administrator who was alive had not taken any steps to prosecute or defend the matter on behalf of the Estate necessitating substitution in order to prosecute and defend the suit on behalf of the Estate. She claimed that the present application was therefore premature and should be dismissed because the issue of substitution has not yet been resolved and that the claim that there was imminent alienation of the suit property is also unsubstantiated. 10.The application was canvassed by way of written submissions. 11.Counsel for the Applicants relied on Section 81 of the Law of Succession Act and authorities including In Re Estate of Elijah Oktah Mikah Tsimbwele (Deceased) [2021] eKLR and Re Estate of Johana Murage (Deceased) [2025] to argue that where one of several administrators dies, the powers and duties of administration automatically vest in the surviving administrator. Thus, the suit could not lawfully abate merely because some administrators had died. The Plaintiffs further argue that unwillingness by a surviving administrator to actively participate in proceedings does not extinguish the grant or render the estate unrepresented, particularly where no renunciation of grant has been made. Counsel also pointed out that after the filing the application and service to the surviving administrator, the present counsel filed a Notice of Change of Advocates and came on record. If the surviving Administrator was unwilling to continue with the suit, on whose authority was the advocate appointed to replace the earlier firm? As such, the circumstances of the abatement were neither deliberate on the part of the Plaintiffs but were as a result of erroneous representation by the Respondents. Therefore, the suit should be revived. 12.On whether the orders dated 28th October 2025 should be reviewed, it is submitted that Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules provides conditions for review. It is argued that discovery that one administrator was still alive constitutes new evidence that was not within their knowledge at the time the abatement order was made, and that the order itself was founded on an erroneous factual premise. It was submitted that the application has been filed timeously and the review application should be granted as sought. 13.Counsel for the Respondent submit that the Applicants have not satisfied the threshold for grant of injunctive reliefs as articulated by Giella v Cassman Brown Co. Ltd (1973) EA. 14.On whether the review relief is merited, it is submitted that the claim that the Applicants were unaware that the 3rd Administrator is alive is false arguing that Counsel for the Respondent informed the Court that the surviving Administrator is unwilling to prosecute the matter. Thus existence of the 3rd administrator was not in dispute and it was well known by the Applicant. Therefore, there was no discovery of new evidence or error apparent on the face of the record to warrant review of the orders issued as per Order 45 Rule 1 Civil Procedure Rules. Further that the Applicants had not demonstrated that sufficient cause existed to warrant revival under Order 24 of the Civil Procedure Rules arguing that survival of the 3rd administrator did not constitute sufficient cause. Counsel also pointed out that they had instituted summons for rectification of the grant to the 3rd Respondent following his unwillingness to prosecute and defend the suit. As such, the application was premature and should be dismissed. 15.Having considered the application, the Replying Affidavit and the submissions the court distills the following issues for determination; Whether the court should review its order dated 28th October 2025 abated Whether the court should reinstate the injunctive orders 16.The courts power to review is exercised under Section 80 of the Civil Procedure Act thus:Any person who considers himself aggrieved—(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit 17.Further, Order 45, Rule 1 provides:‘…and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay’ 18.An applicant must that establish that new and important evidence has emerged that could not be produced when the matter was first heard or that there is a mistake or error apparent on the face of the record or lastly that there is sufficient cause. 19.In the instant case the Plaintiffs/ Applicants rely on the limb of error apparent on the face of the record. The Applicants contend that the court relied on the Defendants representations to mark the suit as abated and yet the Defendant had already been substituted. On the other hand the Respondents aver that there the Defendants estate was not adequately represented as the only remaining administrator had not issued instructions. From this it is clear that the Defendants do not contest that at least one of the administrators was alive. In these circumstances can it be said that the suit properly abated? 20.Order 24 Rule 4 provides “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.subrule (1), the suit shall abate as against the deceased defendant.(3)Where within one year no application is made under(2)Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. 21.In the instant case the record clearly demonstrates that on the 15th August, 2018 an application was made to substitute Robert Macharia Muthama the Defendant, with Mary Kagure Macharia, Consolata Wangari and Joseph Muthama Macharia. The application was allowed on 22nd October 2018. It is therefore clearly an error apparent on the face of record for the suit to have been marked as abated when the counsel for the Defence equally admit that at least one of the administrators was alive hence capable of representing the interest of the estate. The question of the advocate not having instructions is an issue that can be addressed under requisite provisions of the law. 22.The mistake is self-evident from the record as articulated above, and therefore constitutes an error apparent on the face of the record within the meaning of Order 45 Rule 1 of the Civil Procedure Rules and meets the test set out in National Bank of Kenya Ltd v Ndungu Njau, Civil Appeal No. 211 of 1996 (Court of Appeal at Nairobi) [1997] eKLR, in which the court stated that an error or omission warranting review must be self-evident and must not require elaborate argument; 23.I therefore find that there are sufficient grounds to review the order marking the suit as abated. On the question of the injunctive reliefs, the court finds that it is only just to reinstate the injunctive orders which had been issued by the court in the Ruling dated 9th June 2017. It is clarified that these orders will not apply to Kajiado/ Ntashart/ 7633 as this parcel had been excluded from the injunctive orders by consent of the parties. 24.Having said this I note that this matter is an old matter which needs to be concluded one way or another. As such both parties should take action to ensure that they are ready to proceed on the hearing date which the court will give. 25.The Court therefore makes the following orders;a.The orders issued by this Court on 28th October 2025 declaring the suit abated be and are hereby reviewed and set aside. The parties should expeditiously prepare for hearing of the suit on merit.b.Injunctive orders previously issued in respect of parcels Kajiado/Ntashart/325,326,327,328,329,330,331332,333,334,335, 336,337,341342,343,345,346,347,349,350,361,361,362,363 and 55 in Kajiado county and sub divisions Kajiado/ Ntashart/ 7630,7631,7632 are hereby reinstated pending hearing and determination of the suit;c.Costs of the Application shall abide the outcome of the suit. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 28TH DAY OF MAY 2026.JUDY OMANGEJUDGE.In the Presence of:Mr Kofuna for Plaintiff/ ApplicantM/S Kagia for Amani Ndungu for Defendant / Interested PartyPeter – Court Assistant.