https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4146

**REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT.** **HOMA BAY ELC O.S NO 65 OF 2021** **ONG’ERA FRANCIS SABAI (SUING AS THE LEGAL REPRESENTATIVE OF THE ESTATE OF PETER SABAI CHACHA- DECEASED….………………………………APPLICANT/DECREE HOLDER** **VERSUS** **NYAICHOHA MWITA NYANGOKO …...…1ST DEFENDANT/APPLICANT CHAIRMAN BOARD OF MANAGEMENT** **NYAMAHARAGA MIXED SECONDARY SCHOOL …….2ND DEFENDANT** # RULING 1. THAT the Applicant/Decree holder shall have filed a Notice of Motion dated 9th January, 2023 under Articles 40, 48 and 50 of the Constitution and Section 1A, 1B, 3A and 3B of the Civil Procedure Act, Order 1 Rule 10, Order 12 Rule 7 and 42 Rule 6 of the Civil Procedure Rules, seeking for the following orders namely: 2. THAT the Honourable Court be pleased to make orders permitting ONGERA FRANCIS SABAI to substitute his deceased father, Peter Sabai Chacha, who was the decree holder herein. 3. THAT the Honourable Court be pleased to set aside the Order of this Court issued on 27th July, 2022, vide ruling of the same day. 4. THAT this Honourable Court be pleased to issue orders setting the Applicant at liberty to execute the decree issued on 16th February, 2022. 5. Costs of this application be awarded to the Applicant. 6. The Applicant has listed 24 grounds in support of the application, which contains 24 paragraphs. 7. He has annexed the following letters/documents to the affidavit: – Burial permit – The Decree – Ruling – Letter by Kisera – Notice of Appeal 1. To summarise the reasons contained in the grounds, he states; that, the suit was instituted initially by Peter Sabai Chacha, who died, that letters of administration were obtained, that there was a judgment in the primary suit in favour of the deceased; the deceased lodged a notice of appeal and immediately filed an application where leave was granted to file a notice of appeal out of time; since filing the notice, the Defendants/judgment debtors have now gone mute for more than 3 years down the line, that the intended appeal was a ploy to deny the decree holder the right of enjoying the fruits of judgment, that the 2nd Respondent has visited the Applicants asking them to forgo the land in exchange for Ksh 1,000,000/-, that the widow of the deceased is old, frail and sickly, that the existing structure is dilapidated and is almost falling, that a continued stay would cause injustice, and it is in the interest of justice that orders issue be set aside. 2. The affidavit replicates the issues raised in the grounds on the face of application. ## DIRECTIONS BY THE COURT 1. On 2/2/2026 directions were given Court and the Respondent was given 14 days to respond, upon service, and both parties were then given 10 days each to file submissions. ## RESPONSE BY THE RESPONDENT. 1. A reply was filed by Ben. Chache Mwita through his affidavit sworn on 16th June, 2026, which was sworn and filed outside the timelines given by the Court. 2. Though the Court is entitled to discard the said affidavit, I will use my discretion and the ends of justice to allow the same since it is on record. 3. The summary of the issues raised therein is that the school is a public school with a population of 2000 students, that the Defendants, being the Representatives, complied with the condition of stay, that the Court is functus officio, that the school has been supplied with certified copies of proceedings, and that the appeal is arguable and public interest is at hand for consideration, as a lot is at stake for the public, including 2000 learners. 4. The Respondents have attached a letter for proceedings, notice of Appeal and receipt of deposit made to Court in terms of the ruling delivered on 27th July, 2022. ## SUBMISSIONS. 1. It appears that the Plaintiff/Applicant never filed submissions, probably due to non-compliance on the part of the Defendant. 2. The Defendant/Respondent did file submissions, albeit out of time, and having perused the same I note that the one singular issue that is addressed is that this Court lacks jurisdiction to entertain the application. ## ISSUES FOR DETERMINATION. 1. I have considered the application, the replying affidavit and submissions filed herein. I now frame the issues for determination as follows: (a) Circumstances where a deceased party may be substituted (b) Whether , this Court has jurisdiction to handle the application upon filing the notice of Appeal. (c) Arising from the findings in (b) above, what orders should the Court make. 1. In response to (a) above, I will address the law on substitution of a deceased party in the first instance. 2. The Applicant herein has brought the application under Order 1 Rule 10 of the Civil Procedure Rules. I have looked at the said rule and in my opinion the said rule does not provide for substitution of a deceased party. It is specific regarding addition of a party who ought to have been joined and is not so joined, when he is a necessary party, or when without his presence the questions in the suit cannot be completely decided. 3. This rule covers a situation where a suit is brought by the plaintiff who discovers that he cannot get full relief without joining some other person as plaintiff and, secondly, where it is discovered that some other person, and not the original plaintiff, is entitled to the relief claimed, in which case an application will be made for substituting the other person as plaintiff. 4. The procedural law in regard to death of a parties to a suit is Order 24 Rule 3 of the Civil Procedure Rules. It provides for abatement of a suit where substitution is not done within 12 months. 5. However, Order 24 Rule 9 comes into play to clarify the procedure after an order or decree is issued and is being executed. It expressly excludes the procedure of applying for revival where either of the parties has died post-judgment. 6. In appears parties have held the erroneous impression that, where either a decree holder or judgment debtor passes on after judgment, it is mandatory that substitution must be done before execution proceeds. 7. In my opinion, I find that it is not mandatory to substitute, and a decree holder can proceed with execution against any person who is deemed to a Judgement debtor. 8. In the case of Agnes Wanjiku Wangondu v. Uchumi Supermarket Ltd [2008] eKLR the Court held thus: *“...that the requirement for substitution does not apply to proceedings in execution of an order. While Order 30 Rule 1 (now Order 31 Rule 1) states that it shall not ordinarily be necessary to make them parties to the suit, it does not say that they cannot be made parties to the suit. So, in appropriate circumstances, the personal representative can and should be allowed to be enjoined in the suit.”* The Court cited the case of Dhulla Harchand v. Gulam Mohu-udin and Aziz Din s/o Gulam [1940] KLR Vol. XIX at pg. 6, where the Court held as follows: *“No doubt there is no express provision for substitution of the name of a representative in place of the deceased decree holder during the pendency of execution proceedings, but, as is apparent in the number of cases, such applications are filed and the Courts have almost invariably treated such applications to be applications for continuation of the pending execution proceedings. It has been held more than once that the Code is not exhaustive. It is clear from O.XXII r.12 read with rules 3 and 4 that an execution proceeding does not abate at the death of the decree holder. So, there is no bar to execution continuing at the instance of his representative.”* 1. In Muoni Kiambi v. Mbithi Kimeu Kinuthia [2017] eKLR the Court stated: *“ I find there is wisdom in the above provision in that matters that have reached execution stage should be allowed to proceed without the need for substitution of deceased parties. This goes a long way in ensuring the overriding objectives of the Civil Procedure Act and Rules, namely the timely and expeditious determination of disputes between parties. Hence, it is my considered view that it was not mandatory to substitute the deceased decree holder at the execution stage, and therefore the learned trial Magistrate misapprehended the law when he ruled that non-substitution of the decree holder was fatal to the suit.”* 1. In view of the above holding in the above cases, it is not mandatory that substitution has to be done in respect of a deceased decree holder, and there is no bar to execution. 2. However, the only drawback is that, in the application filed, herein the Applicant has failed to clearly state which particular provision of order 42 Rule 6 she intends to rely on. 3. That notwithstanding, Section 1A and 1B of the Civil Procedure Rules Cap 21, which has been referred to in the application, when read together with Article 159(2)(a)(b)(c) and (d), enjoins the Court to foster and facilitate the overriding objective and to administer justice without undue regard to procedural technicalities, so as to render justice to parties in civil proceedings in a just, expeditious, proportionate and affordable manner, at low cost to all parties. 4. The Plaintiff/Applicant has obtained a grant ad litem on behalf of the Estate — in Homabay CMC Msucc Number E112 of 2025, the Estate of the Plaintiff on 29th December, 2025; therefore he is the legal personal representative of the Estate for all intents and purposes. 5. Under Section 2 of the Civil Procedure Act, a legal representative is a person who legally represents the Estate of a deceased person, and where a party sues or is sued in a representative position, the Estate devolves to the said person. 6. In **Rajesh Pranjivan Chudasama v. Sailesh Pranjivan Chudasama [2014] eKLR** the Court of Appeal held: *“A litigant is clothed with locus standi upon obtaining a limited or full letters of administration in cases of intestate succession.”* 1. Since the Applicant is clothed with locus standi, I find that the application for substitution is merited. It is indeed necessary to have onboard ,a party who will pursue the interests of the deceased Plaintiff. 2. I now move to address the second issue, which is whether this Court has the jurisdiction to handle the 2nd and 3rd limb of the application — 3. The Applicant has come to court under Section 42 Rule 6 of the Civil Procedure Rules,which clothes this Court with powers to grant a temporary injunction in exercise of its appellate jurisdiction. 4. The apt provision is Order 42 Rule 6(4), which states thus: *“For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the rules of that court notice of appeal has been given ”* 1. Section 3(1) of the General provisions and interpretation Act states that the words and expressions in the Act shall have the meaning assigned to them except wherein it is expressly otherwise provided 2. It therefore follows that moment a notice of appeal is filed an Appeal to the court of appeal shall be deemed to have been filed and thereafter at that point in time the matter escalates to the domain of the court of appeal. 3. In contradistinction to order 42 Rule 6(4) , Rule 77(1) of the Court of Appeal Rules requires that a person who desires to appeal to the Court of Appeal shall give notice in writing, which shall be lodged within 14 days after the decision is made. 4. Rule 82 provides that, subject to Rule 115, an appeal shall be instituted by lodging in the appropriate registry, within sixty days, the following documents: – a memorandum of Appeal – the record of Appeal – the prescribed fee – security for costs of the Appeal 1. Rule 83 provides outlines the consequences when an appellant fails to initiate an appeal after notice of appeal has been lodged . 2. Rule 84 states that a person who is affected by the Appeal may at any time apply to court to strike out the notice or the appeal. 3. In the case of Irungu v Nairobi City Water & Sewarage Company Limited (Civil Application E337 of 2020) [2026] KECA 822 (KLR), the Court, in reference to Rule 86 of the Court of Appeal Rules 2022, held thus: *“We are satisfied that the Respondent failed to institute the appeal within the time set out by the Rules and has, by operation of Rule 85, been deemed to have withdrawn the notice of appeal. This is not a case of a mere technical lapse. Rather, it reflects a prolonged and unexplained delay extending over several years. Letting the notice of appeal stay on the court record would excuse delay in following procedure and would continue to unfairly prejudice the Applicant, who obtained judgment in his favour.”* 1. Juxtaposing the provisions of Order 42 Rule 6(4) and Rule 84 of the Court of Appeal Rules, one appreciates that the Rules deem the notice of appeal as duly filed, but does not thereby donate jurisdiction to this court to make any orders in respect of matters which are before the Court of Appeal. This Court has to demonstrate fidelity to the exact wording of Order 42 Rule 6. 2. However, Section 7 of the Appellate Jurisdiction Act gives powers to the High Court to extend time to file a notice of appeal or for granting leave to file an appeal to the Superior Court, out of time. 3. Rule 84 gives power to the Court of Appeal to entertain an application in respect of striking out a notice of appeal or deeming same as withdrawn. 4. I therefore find and hold that the hands of this court are tied hence it has no jurisdiction to make any orders or finding in respect of the notice of appeal. It is the Responsibility of the Applicant to move the proper court for striking out as the Court cannot arrogate unto itself powers which are not donated to it by statute. 5. I therefore find that the prayers made in the 2nd limb of the application and the 3rd are misplaced and improperly before the Court. 6. I also note that the Defendants/Respondents represented a public school, which is subject to the Government Proceedings Act. 7. Public school land falls under the public land category, which is one of the three recognised categories of land as stipulated under Article 61 of the Constitution of Kenya. 8. Public schools cannot be converted to a private institution or any other private status without consultation with the National Education Board (NEB) and approval by the Cabinet Secretary for Treasury, who is the custodian of public land as Trustee of the public. 9. It therefore goes without saying that for any attachment or conversion of property to be done, the Plaintiffs will have to seek approval of the Cabinet Secretary . 10. The law also prohibits the National Land Commission from allocating or setting aside public land reserved for public purposes. 11. Currently, the Court is not informed about the status of the said land — that is, if the land is officially registered in the name of the school, as no search has been provided. 12. Even if the Court were to find that it was properly seized of the application, the Applicant would have a tall order in respect of proceeding with execution, as he seeks, in view of the observations made above. 13. In this regard, the public interest test also comes into the fore, in view of the averments made by the Respondents that the fate of 2000 students is at stake. 14. In the upshot I make the following Orders: 15. That Peter Sabai Chacha, the deceased Plaintiff, be and is hereby substituted by Francis Sabai Ongera. 16. Prayer 2 and prayer 3 are without merit and are dismissed accordingly. 17. Each party to bear their own costs. 18. The Respondents are given 60 days to pursue the Appeal in the court of appeal. 19. In meantime, since the Attorney General is the legal actor on behalf of Government and its institutions, I direct that the Applicant’s Counsel do forthwith Serve the Attorney General with all documents in respect of this matter. 20. Parties are also at liberty to settle this matter amicably, which is in the interest of both parties. It is so ordered. RULING DELIVERED THROUGH MICRSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT HOMABAY THIS ,30TH DAY OF JUNE 2026. In the Presence of; 1. Kisera for the 2nd Defendant/Plaintiff-Present 2. Quinter Adoyo for the Plaintiff- Present (Muted). 3. Court Assistant: Ms. Awino. JUSTICE JOHN WALTER WANYONYI-JUDGE **Court:** The defendant is given 60 days to pursue the Appeal. Mention on 7/9/2026 for further Orders. Parties are also advised to pursue a settlement if they deem fit. JUSTICE JOHN WALTER WANYONYI-JUDGE 30/6/2026