https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4090

Muthoni & another (Suing as the administrator of the Estate of Peter Njenga Kinyara) v Wanjiru & another (Environment and Land Miscellaneous Case E033 of 2022) [2026] KEELC 4090 (KLR) (1 July 2026) (Ruling) Neutral citation: [2026] KEELC 4090 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Miscellaneous Case E033 of 2022 CA Ochieng, J July 1, 2026 Between Salome Muthoni & Stephen Gitau Njenga (Suing as the administrator of the Estate of Peter Njenga Kinyara) Applicant and Margaret Wanjiru 1st Respondent Eunice Wangari 2nd Respondent Ruling 1.What is before the Court for determination is the Applicants’ Notice of Motion application dated the 4th December, 2025 in which they seek the following Orders:a.That the deceased administrators, David Karanja Njenga and James Njenga Kinyanjui, be substituted with Salome Muthoni and Stephen Gitau Njenga, the duly appointed administrators of the Estate of Peter Njenga Kinyanjui pursuant to the Grant confirmed on 1st April 2025.b.That the Applicant’s name in the caption and throughout the record, including the amended decree of 8th March 2024 to correctly read: “Suing as the Administrator of the Estate of Peter Njenga Kinyara.”c.That the order and amended decree issued on 8th March 2024 be reviewed to replace “Officer Commanding Kabete Police Station’’ with “Officer Commanding Spring Valley Police Station’’.d.That this Honourable Court be pleased to order the execution and satisfaction of the decree as amended.e.That the costs of this application be provided for. 2.The application is premised on grounds on its face and on the supporting affidavit of Salome Muthoni, who avers that she is an administrator of the estate of Peter Njenga Kinyara (deceased), alongside Stephen Gitau Njenga. She clarifies that the deceased’s name is erroneously captured in the pleadings and Decree on record as Peter Njenga Kinyanjui, which she contends is an inadvertent typographical mistake committed by Counsel during the preparation of pleadings, thus it ought not to prejudice the enforcement of the Court’s Decree herein. 3.She contends that the suit property, Land Title No. Dagoretti/ Kangemi/ 81, has been the subject of protracted litigation since 1973. She points out that on 5th April 2019, the Court of Appeal delivered judgment in Elizabeth Wanjiru Njenga & Another v Margaret Wanjiru Kinyanjui & 2 Others confirming that the suit property belongs to the Estate of Peter Njenga Kinyanjui and that an Appeal to the Supreme Court by the Respondents herein vide Petition No. 19 of 2019 was struck out through a Ruling delivered on 4th September 2020. 4.She claims that on 26th May 2021, the Respondents agreed to vacate the suit property in the presence of the area Chief and remove their structures by 31st December 2021, but failed to comply. Further, that through a Court Annexed Mediation, the parties herein reached an agreement dated 18th April 2023, which was adopted as an Order of the Court on 20th July 2023 and subsequently amended and re-issued on the 8th March 2024. Further, that six (6) months have lapsed since then, but the Applicants are unable to enforce the said Orders as issued vide this Court’s Decree of 8th March 2024, as the property has since been removed from the operational jurisdiction of the Officer Commanding Kabete Police Station and lies in the jurisdiction of Spring Valley Police Station. Response 5.The application is opposed by the Respondents who filed Grounds of Opposition. They contend that the suit abated since the deceased Applicants (David Karanja Njenga and James Njenga Kinyanjui) were not substituted within the time allowed. Further, that the Applicants lack locus standi to seek prayers 2, 3, and 4 of the instant Notice Motion before prosecuting the prayer for substitution of the deceased parties. 6.The application was canvassed by way of written submissions. Submissions 7.The Applicants submit that Order 24 Rules 1 and 3 of the Civil Procedure Rules permit the substitution of legal representatives of a deceased party to ensure that justice does not perish merely because a litigant has passed on. 8.On the prayer seeking correction of the deceased’s description to Peter Njenga Kinyara, they contend that Sections 80 and 99 of the Civil Procedure Act, together with Order 45 of the Civil Procedure Rules, vests this Court with jurisdiction to review its decisions and to correct clerical or accidental errors so as to give full effect to the true intention of its decision. They insist that the error is purely Counsel’s clerical mistake and does not affect the substance of the dispute or the identity of the property and that a litigant should not be penalized for the inadvertence or mistake of Counsel where no prejudice is occasioned to the opposing party. 9.They also submit that the amendment sought to replace Officer Commanding Kabete Police Station merely aligns to enforce the Decree of 8th March 2024, as the suit property falls within the jurisdiction of the Officer Commanding Spring Valley Police Station. 10.It is also the Applicants’ submission that while they are alive to the Court’s earlier observation that substitution ought, in the ordinary course, to precede amendment, the present circumstances are exceptional, given that the misdescription of the deceased permeates the entire record and Decree, while substitution depends on correctly identifying the estate. 11.To buttress their averments, the Applicants relied on the following decisions: Mbugi & Another v Matundio (Environment and Land Appeal No. 4 of 2021) [2024] KEELC 1393 (KLR); Brian Muchiri Waihenya v Jubilee Hauliers Ltd & Another, Geminia Insurance Co. Ltd (Interested Party) [2018] eKLR; Philip K. Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR); Belinda Murai & 9 others v Amos Wainaina [1979] KECA 25 (KLR) and Satrose Ayuma & 11 Others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 Others [2013] eKLR. 12.On their part, the Respondents submit that vide this Court’s Ruling of 5th December 2024, Mbugua J, directed the Applicants to substitute David Karanja Njenga and James Njenga Kinyanjui who died in 2022 and 2024 respectively and since no application was made to substitute them within twelve (12) months, the suit abated by operation of Order 24 Rule 3 (2) of the Civil Procedure Rules. 13.They also insist that while the Plaintiffs herein had filed a suit on behalf of the estate of Peter Njenga Kinyanjui, the Applicants seek to be substituted on the strength of a Grant issued in respect of the estate of one Peter Njenga Kinyara who is a different person, and which action would in essence bring in a new party after the suit has been determined. Analysis and Determination 14.Upon consideration of the instant Notice of Motion application including the Grounds of Opposition and rivalling submissions, the following are the issues for determination: Whether the application for substitution of the deceased administrators is merited. Whether the Court should review the description of the deceased's name from "Peter Njenga Kinyanjui" to "Peter Njenga Kinyara" in the pleadings and decree. Whether the Court should review the Decree dated 8th March 2024 by substituting the Officer Commanding Kabete Police Station with the Officer Commanding Spring Valley Police Station. 15.On the first issue, it is not disputed that the initial administrators of the estate of Peter Njenga Kinyanjui, being David Karanja Njenga and James Njenga Kinyanjui, died on 2nd April 2024 and September 2022 respectively. The Applicants contend that they are duly appointed administrators of the Estate of Peter Njenga Kinyanjui pursuant to the Grant confirmed on 1st April 2025, and wish to substitute them. 16.On their part, the Respondents contend that the suit already abated under Order 24 Rule 3(2) of the Civil Procedure Rules for failure to substitute the deceased administrators within the prescribed period. Further, that vide its Ruling dated 5th December 2024, this Court directed that the estates of the deceased’s administrator were to be substituted, not the estate of Peter Njenga Kinyanjui. 17.What happens when all administrators pass on? Should their estate be represented as contemplated by the Respondents or should the estate they represent appoint another administrator? In Re Estate Of Elijah Oktah Mikah Tsimbwele (Deceased) [2021] eKLR, it was stated:“The death of one or more administrators does not affect the grant, in terms of rendering it invalid or inoperative or useless. Under Section 81 of the Act, the powers and duties of personal representative rest in the surviving personal representative on the death of one of them. Section 76 (e) of the Act only applies where there is a sole administrator who then dies…..” 18.Further, a suit abates by operation of law, one year after the death of a party. This suit abated on 6th December 2025, a year after the demise of David Karanja Njenga, and just two (2) days before the date of the instant application for substitution, which is dated 4th December 2025. Order 24 Rule 7 (2) of the Civil Procedure Rules provides that an abated suit may be revived if it is proved that the person applying for revival was prevented from continuing the suit by any sufficient cause. It states as follows:“The plaintiff or the person claiming to be the legal representative of a deceased Plaintiff or the Trustee or official receiver in the case of a bankrupt Plaintiff may apply for an order to revive a suit which has abated or to set aside an order of dismissal; and, if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall revive the suit or set aside such dismissal upon such terms as to costs or otherwise as it thinks fit.” 19.In Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Ltd & 2 others [2017] eKLR, the Court of Appeal stated as follows:“A prayer for the revival of the suit cannot be allowed as a matter of course or right. If the applicant demonstrates and the court is satisfied that he was prevented by any sufficient cause from continuing the suit, the court will allow the revival of the suit upon such terms as to costs or otherwise as the court may think fit..” 20.The Court of Appeal also stated as follows in Said Sweilem Gheithan Saanum v Commissioner of Lands (being sued through Attorney General) & 5 Others [2015] eKLR:“…The legal representative of the deceased Plaintiff may apply for the abated suit to be revived after satisfying the court he was prevented by “sufficient cause” from continuing with the suit. The effect of an abated suit is that it ceases to exist in the eye of the law. The abatement takes place on its own force by passage of time, a legal consequence which flows from the omission to take the necessary steps within one year to implead the legal representative of the deceased Plaintiff.” 21.I note the Applicants seek to revive this suit which had already been concluded and the only issue remaining was execution of the Decree. Further, the Respondents have not denied that there is a Decree. I also note that the instant application was filed two days before this suit abated. 22.Based on the facts as presented while relying on the legal provisions cited and associating myself with the decisions quoted, and in the interest of justice noting that the Respondents have declined to move from the suit property despite agreeing to do so. Further, noting that they have not demonstrated what prejudice they stand to suffer if this suit is revived to enable the Applicants undertake execution of the impugned judgement, I find the prayer for substitution of the deceased administrators merited and will allow it. 23.On the second issue, the Applicants contend that the entire record and the resulting amended Decree issued on 8th March 2024 erroneously refer to the deceased as “Peter Njenga Kinyanjui” instead of “Peter Njenga Kinyara.” They contend that the error is merely a clerical or typographical mistake committed by their Counsel while preparing pleadings and the said mistake is capable of correction under Sections 80 and 99 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. 24.On their part, the Respondents contend that the proposed correction would amount to a new party to the proceedings, which action would highly prejudice them. 25.The second issue has a striking similarity with the third issue, where the Applicants also seek a review of the Decree to refer to the OCS Spring Valley instead of Kabete, and contend that doing so is necessary to facilitate its effective execution, the changes do not alter the substantive rights of the parties. 26.On these two issues, Section 80 of the Civil Procedure Act gives this Court jurisdiction to determine an application for review. It provides that:“Any person who considers himself aggrieved; by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or 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.’’ 27.Order 45 of the Civil Procedure Rules provides that a review would be permitted on grounds of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within one’s knowledge when a Decree was passed, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. 28.Further, Section 99 of the Civil Procedure Act provides that:“Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.” 29.From the Court record, I note the deceased is referred to as Peter Njenga Kinyanjui, however during Mediation post judgement in which the Respondents agreed to move out of Dagoretti/Kangemi/81, which is also the suit land herein, it refers to the deceased as Peter Njenga Kinyara. The Respondents are now vehemently opposing correction of the deceased name yet in Mediation Settlement Agreement dated the 18th April, 2023, which was entered into post judgement, they agreed to move from the suit land where the Applicants were representing the estate of Peter Njenga Kinyara. 30.Further, I note the Applicants have not sought to amend the subject matter of the dispute as stated in the Decree. I opine that the Respondents are not being candid. The Applicants have further explained that the Kabete Police Station no longer has jurisdiction to handle the dispute herein but it is Spring Valley Police Station that can deal with it. 31.The Supreme Court recognized the Court’s residual jurisdiction in the case of Narok County Government & another v Ntutu & 4 others (Petition 3 of 2015) [2018] KESC 11 (KLR) (11 December 2018) (Judgment) where it stated thus:“Back home, the Court of Appeal in addressing the point at hand in Kenya Power & Lighting Company v Njumbi Residents Association &another [2015] eKLR cited Ouko J (as he then was) In the matter of the Estate of George M’Mboroki, Meru HCSC No. 357 of 2004 and aptly put it that; “… the Court retains certain intrinsic authority in the absence of specific or alternative remedy, a residual source of power, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular, to ensure the observance of the due process of the law, to prevent abuse of process to do justice between the parties”. Further, in Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2014] eKLR the Court of Appeal set out the principles to guide the Court in exercising inherent jurisdiction in these words; “The jurisprudence that emerges from the case-law from the aforementioned jurisdictions shows that where the Court is of final resort, and notwithstanding that it has not explicitly been statutorily conferred with the jurisdiction to reopen a decided matter, it has residual jurisdiction to do so in cases of fraud, bias, or other injustice with a view to correct the same and in doing so the principles to be had regard to are, on the one hand, the finality principle that hinges on public interest and the need to have conclusiveness to litigation and on the other hand, the justice principle that is pegged on the need to do justice to the parties and to boost the confidence of the public in the system of justice…. The conclusion drawn from the above citations is that this Court, indeed any other appellate Court, even where there are no specific provisions to do an act, has inherent and/or residual powers to act in a fair or equitable manner in the interest of justice and/or to ensure the observance of the due process of the law. Therein also lies the power for the Court to act to prevent abuse of the Court process by one party so that fairness is maintained between all parties.” 32.From the facts before Court, noting that Section 99 of the Civil Procedure Act grants this Court inherent power to correct clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, at any time. Further, that section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, allows for review to correct an error apparent on record and correction of a Decree whenever there are clerical mistakes, while associating myself with the decisions cited above, I find that in the interest of justice while exercising the Court’s intrinsic authority, it is just and equitable to allow the amendment to correct the Decree to reflect the correct name of the deceased as well as the Police Station for purposes of aiding in execution of the Decree. In the circumstances, I find that the Applicants are entitled to the Orders sought to enable them proceed to execute the amended Decree. 33.In the foregoing, I find the instant Notice of Motion application merited and will allow it. 34.Costs will be in the cause. DATED SIGNED AND DELIVERED AT NAIROBI THIS 1ST DAY OF JULY, 2026CHRISTINE OCHIENGJUDGEIn the presence of:Omondi for ApplicantAhomo holding brief for Amuga for RespondentsCourt Assistant: Vena