https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4793

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **E.L.C. CASE (O.S.) NO. 566 OF 2017** **ITEMBE SENDI....................................1ST PLAINTIFF/APPLICANT** **PAUL MARWA ITEMBE.......................2ND PLAINTIFF/APPLICANT** **NKIRU MARWA ITEMBE.....................3RD PLAINTIFF/APPLICANT** **-VERSUS-** **ROBI MWITA MACHERA.....................DEFENDANT/RESPONDENT** **RULING** *(On the whether to extent time for abatement of suit, revive it and substitute a legal representative)* **A. INTRODUCTION** 1. Before the Court is the Notice of Motion dated 5th December, 2025. It is brought under Order 24 Rules (4) and (7), Order 51 Rule 1 of the Civil Procedure Rules, and Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap 21. It seeks mainly the revival of this suit, the extension of time to substitute the deceased Defendant with his legal representative, and the reopening of the suit for hearing and determination on merit. 2. The application is opposed by the Defendant's Estate, through its legal representative ad litem, Sofia Mogosi Giboma, who filed a Replying Affidavit sworn on 30th March, 2026. 3. Both parties filed written submissions, which I have carefully considered alongside the pleadings, affidavits and the record of the court. **B. BACKGROUND** 1. The suit was originally commenced by way of an Originating Summons dated 18th December, 2014. In it the Plaintiffs/Applicants sought a declaration that they had acquired the suit land **Bukira/Buhiringera/191** measuring approximately 3.3 hectares, by adverse possession over. It registered in the name of the Defendant, Robi Mwita Machera. 2. The Defendant testified in the suit on 4th December, 2019. He died thereafter, on 8th January, 2022, before judgment could be delivered. 3. No application for substitution of the deceased Defendant was made within one year of his death as required by Order 24 Rule 4(3) of the Civil Procedure Rules. The suit as against the deceased Defendant, therefore, abated by operation of law on 8th January, 2023. Notwithstanding the abatement, the suit proceeded, culminating in a judgment entered on 23rd April, 2023, against the deceased Defendant. 4. The deceased Defendant's Estate remained unadministered until 8th March, 2024, when Sofia Mogosi Giboma, the Defendant's daughter-in-law, obtained a Limited Grant of Letters of Administration ad Litem, restricted to the purpose of filing suit, in Probate and Administration Cause at the Chief Magistrate's Court at Migori. 5. Armed with the limited Grant, Sofia Mogosi Giboma, filed an application dated 28th May, 2024. She sought, among others, the prayer to set aside the judgment and proceedings entered against the deceased Defendant, and to be substituted in his place. 6. In its Ruling delivered on 25th March, 2025, this Court allowed the application in part. The Court set aside the judgment dated 23rd April, 2023, and declared the proceedings of 2nd March, 2022 and all subsequent proceedings irregular. It, however, declined the prayer for substitution, holding that: *“Consequently, I find that the instant application is with merit. I therefore allow it as prayed, save that prayer No. 2 cannot be granted because substitution cannot be made in a suit that abated and remains as such. It can be made only where the suit is revived. Herein there is no prayer for the revival of the suit; prayers 6 and 7 can only be actualized if the suit is revived.”* 1. It is against that background that the Applicants brought the present application, this time expressly seeking the revival of the abated suit and substitution. **C. THE APPLICANTS' CASE** 1. The application is premised on the grounds that the Defendant died on 8th January, 2022 before conclusion of the suit. The suit abated after the lapse of one year, following the Defendant’s death. His estate was left without an administrator who could be substituted in his place. The administrator ad Litem, Sofia Mogosi Giboma, has since been appointed. An application/ suit for adverse possession was still pending determination at the time of the Defendant's death. No prejudice would be occasioned to the Respondent's Estate if the application is allowed. 2. In the Supporting Affidavit of Paul Marwa Itembe, the 2nd Applicant, deponed that the Estate remained unadministered until 8th March, 2024. It is in the interest of substantive justice, equity and fairness that the suit be revived to enable its expeditious disposal on merit. **D. THE RESPONDENT'S CASE** 1. In her Replying Affidavit sworn on 30th March, 2026, Sofia Mogosi Giboma depones that the deceased Defendant was her mother-in-law's late husband (*sic), her father-in-law,* who died on 8th January, 2022. That in March 2024 the Applicants invaded the suit land and began demarcating it. It prompted her to move the Court. The Court set aside the ex-parte Judgment and proceedings entered against the deceased. The Applicants had at all material times known that they were proceeding against a dead Defendant. She took out a Grant ad Litem on 8th March, 2024. The suit abated on 8th January, 2023. No proper explanation had been given for the Applicants' failure to seek substitution since 2023. It was now over a year since the Court's orders of 25th March, 2025 were granted. The Applicants were guilty of laches. The suit had abated with no surviving cause of action. The Applicants had never been on the suit land. **E. SUBMISSIONS** 1. In their written submissions dated 5th December, 2025, the Applicants condensed their argument to two issues: (a) whether the firm of M/S Abisai & Company Advocates was properly on record to oppose the application on behalf of Sofia Mogosi Giboma; and (b) whether the prayers for revival of the suit and subsequent substitution were merited. 2. On the first issue, the Applicants contended that Sofia Mogosi Giboma remained a stranger to the suit until she would be formally substituted. That substitution could only follow revival of the abated suit. They relied on **Kenya Farmers Co-operative Union Limited v Charles Murgor**, **HCCC No. 1671 of 1994** (*sic*), for the proposition that there must first be an application for revival of the suit after abatement before substitution can be effected. It was their submission that the firm of Abisai & Company Advocates could not, in the circumstances, properly purport to represent her in opposing the instant application. 3. On the second issue, the Applicants submitted that Order 24 Rules 4 and 7 of the Civil Procedure Rules do not fix a strict or inflexible deadline for revival of an abated suit. Further, that courts have, by analogy to the Limitation of Actions Act, allowed revival applications brought within six years of death. They relied on **Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Ltd & 2 Others** **(2017)** *(sic),* and **Lagat v Rotich** **(2024) KEELC 5302**, for the proposition that an application to revive will fail only where the proposed representative has not yet taken out letters of administration, a defect they submitted does not arise here, as Sofia Mogosi Giboma had already taken out letters before the application was filed. 4. Further, the Applicants invoked the oxygen principle, relying on **King'ori v Humphrey Karanja** **[2023]**, **Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates** **[2013] eKLR**, and **Issa Masudi Mwabumba v Alice Kavenya Mutunga & 4 Others** **[2012] eKLR**, as well as **Karanja v Thuo & 2 Others (2019)** (*sic*). They also cited Sections 1A and 1B of the Civil Procedure Act, for the proposition that substantive justice ought to override rigid procedural technicality, and courts are enjoined to be guided by a broad sense of justice and fairness in facilitating just, expeditious, proportionate and affordable resolution of disputes. They submitted that the suit herein concerns a land dispute in which the Applicants have no alternative land, and that allowing the application would serve the ends of justice to both parties. 5. In their written submissions, the Respondents framed five issues for determination: (i) whether the firm of M/S Abisai & Company Advocates is properly on record; (ii) whether the suit abated by operation of law; (iii) whether the Applicants have established sufficient cause for revival; (iv) whether the delay is inordinate and inexcusable; and (v) whether the Court should exercise its discretion in the Applicants' favour. 6. On the first issue, the Respondent submitted that the firm is properly on record, having been appointed by Sofia Mogosi Giboma on 28th May, 2024. It filed a Notice of Appointment of Advocates on 30th April, 2024. Further, Sofia Giboma holds a Limited Grant of Administration ad Litem dated 8th March, 2024. 7. On the second issue, the Respondent submitted that Order 24 Rule 4(3) of the Civil Procedure Rules is couched in mandatory terms. A suit automatically abates where no application for substitution is made within one year of a defendant's death. She relied on **Kenya Farmers Co-operative Union Ltd v Charles Murgor (Deceased) t/a Kiptabei Coffee Estate** **[2005] eKLR** to argue that once a suit has abated, there is no subsisting suit in which substitution can lawfully be effected unless and until it is first revived. Further, that a purported substitution after abatement is a nullity. Also, she relied on **Jacinta Mwende Kimanzi v Barker Benard Wayne & another** **[2021] eKLR**, to that effect. 8. On the third and fourth issues, the Respondent submitted that the burden lay on the Applicants to demonstrate sufficient cause preventing compliance with Order 24 Rule 4. She relied on **Rebecca Mijide Mungole & another v Kenya Power & Lighting Co. Ltd & 2 Others** **[2017] eKLR** and **Said Sweilem Gheithan Saanum v Commissioner of Lands & 5 Others [2015] eKLR** for the proposition that revival of an abated suit is not automatic. That it is a discretionary remedy available only upon a satisfactory explanation for the delay. They submitted that no such explanation has been offered. The Applicants slept on their rights. She relied on **Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR** in which the Supreme Court held that extension of time is an equitable remedy unavailable to an indolent litigant, and that an applicant bears the burden of explaining every period of delay. 9. On the fifth issue, the Respondent submitted that the discretion to revive an abated suit must be exercised judiciously and not capriciously. She then contended that the Applicants had not even attempted to demonstrate sufficient cause. They relied on **Julius Maina Kabiru v Kabiru Kang'ara & another** **[2022] eKLR** for the argument that an application for substitution filed after the statutory period, without first satisfying the requirements for revival, cannot succeed. She prayed that the application be dismissed with costs. **F. ISSUES FOR DETERMINATION** 1. This court has carefully considered the application, the rival affidavits and submissions and the law. I find that the following issues arise for determination: 2. Whether the law firm representing the Respondent is properly on record; 3. Whether the Applicants have demonstrated sufficient cause to warrant revival of the abated suit and extension of time for substitution. **G. ANALYSIS AND DETERMINATION** 1. I now proceed to discuss and dispose of the issues in sequence. This is because if the first issue succeeds, then the response by the Respondent would be irregularly brought. Further, it would mean that there would be no response to the application, in terms of **Order 51 Rule 14** of the **Civil Procedure Rules**. Similarly, the submissions would be deemed as nought as they would be filed by a stranger. **Issue (a): Whether the law firm representing the Respondent is properly on record** 1. It is common ground that there is no judgment that is subsisting in the instant suit in order for the provisions of Order 9 Rule 9 of the Civil Procedure Rules to apply. This leave the general provisions on representation by learned counsel to apply. But before considering law, it is also not in dispute that Sofia Mogosi Giboma has not as at this point in time been substituted for and on behalf of the deceased party. *Stricto sensu*, a suit that has abated has no party against whom it can proceed or on whose behalf steps can be taken until it is revived. This is the position affirmed in **Kenya Farmers Co-operative Union Limited v Charles Murgor (Deceased) t/a Kaptabei Coffee Estate [2005] eKLR,** and reiterated by both parties before me. 2. That notwithstanding, representation of parties by counsel is a mechanism provided for in the Rules of procedure. **Order 9 Rule 1** of the Civil Procedure Rules provides that *“Any application to or appearance or act in any court required or authorized by the law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by an advocate duly appointed to act on his behalf:*” 1. In the instant suit, Sofia Mogosi Giboma holds a Limited Grant of Letters of Administration ad litem, issued to her on 8th March, 2024. It vests in her the standing to protect the estate of the deceased Defendant from proceedings and orders that would affect it. She appointed her current Advocates who, as per the record filed a Notice of Appointment of Advocates on 30th April, 2024. This Court's own Ruling of 25th March, 2025, proceeded on that basis. It heard and substantially allowed her application, setting aside the judgment and irregular proceedings entered against the deceased, notwithstanding that she had not then been, and still has not been, formally substituted, because the judgment and proceedings impugned were clearly irregular and basically a nullity. 2. The said person who has been appointed to defend the interests of the Estate of Robi Mwita Machera (deceased) is the person whom the applicant seeks to substitute as a party in that behalf. Is she entitled to representation even before she is formally substituted? To the extent that there are proceedings intended to be urged by or against her and she is of the view that she needs representation, it is a fundamental right that cannot be taken away from her, except as would be provided by law. 3. It would be illogical for this Court to hold that Sofia Mogosi Giboma's advocates lack standing to represent her in opposition to an application whose very object is to finally determine the subject which is whether her father-in-law's estate should be drawn back into active litigation or not, yet this Court has already recognised her standing to move the Court for orders touching on the same estate. This objection to representation, if sustained, would leave the Estate unrepresented and unheard on an application that directly affects it, a result inimical to the rules of natural justice. 4. For the above reasons, I find and hold that the firm of M/S Abisai & Company Advocates is properly on record for purpose of representing the Respondent in opposing the application dated 5th December, 2025. This is without prejudice to the fact that formal substitution of Sofia Mogosi Giboma as a party to the substantive suit remains contingent upon the grant of orders of extension of time and revival of suit sought herein, if it is merited. **Issue (b): Whether the Applicants have demonstrated sufficient cause for revival and extension of time** 1. Going further to the merits of the application, Order 24 Rule 4(3) of the Civil Procedure Rules provides, in mandatory terms, that where one of two or more defendants dies and the cause of action survives against the surviving defendant(s), or where a sole defendant dies and the cause of action survives, the suit shall, unless an application is made for leave to continue the suit within one year of the death, abate as against the deceased defendant. The provision is self-executing. No order of court is required to bring about the abatement, it takes effect automatically upon the lapse of the one year period. 2. This is the position confirmed by the Court of Appeal in **Kenya Farmers Co-operative Union Ltd v Charles Murgor (Deceased) t/a Kiptabei Coffee Estate** [2005] eKLR, and in **Jacinta Mwende Kimanzi v Barker Benard Wayne & another** [2021] eKLR, both of which hold that once a suit abates, no subsisting suit remains in which substitution can lawfully be effected unless and until the suit is first revived, and that a purported substitution effected after abatement, without prior revival, is a nullity. 3. Applying these principles to the facts of the present case, the Defendant died on 8th January, 2022. No application for substitution was made within one year thereafter. The suit therefore abated by operation of law against the deceased Defendant on 8th January, 2023. This position is, in any event, common ground between the parties, both of whom proceed on the basis that the suit abated on that date. I so find and hold. 4. Order 24 Rule 7 of the Civil Procedure Rules, even absent of Section 3A of the Civil Procedure Act which is a general provision where no other provision exists, clothes this Court with jurisdiction to set aside an abatement and revive a suit, upon such terms as it deems fit. This occurs where the party applying for the orders satisfies the Court that he was, from any cause, prevented from continuing the suit. Ordinarily it is illogical for a party to wait endlessly and surface after several years to revive a suit. 5. Neither Order 24 nor any other provision of the Civil Procedure Rules fixes a rigid limitation period for such an application. A number of Courts have, however, by analogy to the general limitation period for actions founded on contract or tort under the Limitation of Actions Act, Chapter 22 Laws of Kenya, generally treated a period of up to six years from the date of death as an outer, though not automatic or absolute, benchmark within which a revival application may be entertained, provided sufficient cause is shown for the delay. This was the approach taken in **Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Ltd & 2 Others (2017)**, where the High Court held that because the rules do not fix an explicit time limit for revival, applications brought within six years of death may be entertained where sufficient cause, such as delay occasioned by the process of obtaining letters of administration, is demonstrated. 6. It is equally well settled, as submitted by the Respondent, that revival is not automatic and remains a discretionary remedy. In **Said Sweilem Gheithan Saanum v Commissioner of Lands & 5 Others [2015] eKLR**, the Court emphasised that revival is discretionary and can only be granted where sufficient cause has been established. Similarly, the Supreme Court in **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others** **[2014] eKLR** held that extension of time is an equitable remedy not available to an indolent party, and that an applicant seeking such indulgence bears the burden of explaining every period of delay, not merely the overall delay in bold terms. 7. In **Nyamweya v Nyamweya (Deceased); Nyambane & 2 others (Respondent) (Environment & Land Case 26 of 2003) [2024] KEELC 729 (KLR) (20 February 2024) (Ruling)**, this court did no grant an order of revival of a suit in respect of a party who had died on 30th September 2013 and the applicant moved that court vide an application brought ten years after, which was dated 28th August 2023 on the grounds that an applicant had just discovered an appointment of a representative of the estate of the deceased. 8. The totality of the import of the above decisions is that Order 24 of the CPR does not provide for a time limit for application for extension of time to revive a suit. While my learned brothers and sisters have proposed the fixing of the period to six years, based on contract duration, I am prepared to state that it is a good proposal which arises from a reasoned point of view. However, I do not find the reason for the choice of contractual obligations and not, for instance, tortious claim periods which are three years. That being so, having carefully read many propositions which vary, it is my humble view that the Court of Appeal or Supreme Court would do well to give guidance on such a period, some day a similar issue of presented before them. As of now it is my very humble and considered view that such an application should not be entertained by any court after the lapse of 12 years from when the abatement takes effect. This means thirteen years after the death of the party who is not substituted. This is because by virtue of the Section 4(4) of the Limitation of Actions Act, a decree or decision of a Court is incapable of execution at the expiry of twelve years from the last order made on it by a court. Litigation must come to an end. 9. This now turns me to the point of analyzing, period by period, the delays that may appear to have been made between the Defendant's death and the filing of the present application, guided by the principle in **Salat case** (*supra*) that each period of delay must be accounted for: 10. Between 8th January, 2022 and 8th January, 2023, there was no administrator of the deceased Defendant's Estate existed. There was, in the strict sense, no person competent to be substituted or to seek substitution on the estate's behalf. At the end of the period the suit against the Defendant abated. 11. Between 8th January, 2023 and 8th March, 2024, the Estate remained without an administrator. This delay of approximately fourteen months is explained by the practical realities of obtaining a grant of representation, a process not within the control of the Applicants. This Court accepts it as amounting to sufficient cause, as consistent with the reasoning in **Rebecca Mijide Mungole case** (supra); 12. Between 8th March, 2024 and 28th May, 2024, promptly upon the grant of letters ad litem, the legal representative moved the Court within under three months, seeking (among other prayers) to be substituted; 13. Between 28th May, 2024 and 25th March, 2025, the matter was pending before this Court over the application on whether to set aside the judgment and substitute the deceased. It culminated in the Ruling that clarified that revival, not substitution simpliciter, was the correct first step, and; 14. Between 25th March, 2025 and 5th December, 2025, a further period of approximately eight months elapsed before the present application, expressly seeking revival, was filed. There is no meaningful explanation given for this. 15. Of these periods, the first two, spanning roughly twenty-six months, are, in my view, satisfactorily explained by the absence of a legal representative capable of moving the Court, a circumstance beyond the Applicants' control. The third and fourth periods reflect diligent and continuous engagement with the Court process over the possibility of substitution. The fifth period, though the least satisfactorily explained on the face of the papers, is relatively short by comparison, and may be assessed against the fact that it was occasioned by the need to reformulate the application to expressly seek revival ahead of substitution, in direct response to and compliance with this Court's own guidance in its Ruling of 25th March, 2025. 16. I am fortified in this view by the fact that, unlike the earlier application dated 28th May, 2024, which this Court declined in part because it sought substitution without first praying for extension of time and revival, the present application correctly and deliberately prays, at prayer 1, for revival of the suit, before seeking, at prayers 2 and 3, extension of time and substitution. The Applicants saw the light and have thus cured the very defect. In the circumstances, I do not find that the application offends the principle in **Julius Maina Kabiru v Kabiru Kang'ara & another** **[2022] eKLR**, cited by the Respondent, which concerned an application for substitution filed without first satisfying the requirements for revival, the mirror image of what is properly before me now. 17. I have also considered **Lagat v Rotich** **(2024) KEELC 5302**, cited by the Applicants, to the effect that an application to revive will fail where the proposed representative has not yet taken out letters of administration. The decision is distinguishable. The difficulty (of lack of letters) does not arise here because Sofia Mogosi Giboma took out a Limited Grant ad Litem well before the present application was filed. 18. On the question of prejudice, the applicant considers none to be suffered by the Respondent’s Estate. Since the applicant posited that it would be no prejudice would be occasioned to the Respondent's Estate, and it did not respond on the position, I find that the Respondent has not demonstrated any specific or tangible prejudice that would be occasioned by revival of the suit, beyond the delay itself and the general assertion of laches. The complaint that the Applicants “invaded” and began demarcating the suit land in March 2024 is a matter going to the merits of the substantive dispute, and is not, in itself, prejudice flowing from revival of the suit. On the contrary such occurrence or change of circumstances place the obligation on the parties to litigate over this suit to determine who the rightful owner is. The suit concerns a dispute over land which the Applicants assert is their only home and claim I by way of adverse possession. This remains an undetermined issue on its merits. 19. The above position favours the resolution of the dispute on its merits rather than on technicalities. In any event the Respondent already took out letters of administration for purposes of taking care of the interests of the Estate of the deceaced Robi Machera. This suit is one of those interests. She cannot repulse the claim. Applying the overriding objective under Sections 1A and 1B of the Civil Procedure Act, and the oxygen principle as applied in **King'ori v Humphrey Karanja** [2023]; **Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates** [2013] eKLR and **Issa Masudi Mwabumba v Alice Kavenya Mutunga & 4 Others** [2012] eKLR, this court is enjoined courts to give justice and fairness to all parties as circumstances of each case present themselves. 20. I am mindful, as the Court of Appeal cautioned in **Karanja v Thuo & 2 others (Civil Application 52 of 2018) [2019] KECA 871 (KLR) (22 February 2019) (Ruling)** that the oxygen principle does not uproot established procedure altogether, but rather emboldens courts to be guided by a broad sense of fairness rather than strict technical default. Applying that balance to the facts herein, an Estate that took over a year to find an administrator, a party who has since acted with reasonable diligence to remedy a defect in an earlier application, and has demonstrated no prejudice to the Estate beyond a mere short delay, should not be denied opportunity to have the orders sought. I am satisfied that the Applicants have demonstrated sufficient cause to warrant extension of time to substitute the deceased Defendant and the revival of the suit. 21. For the foregoing reasons, I find the Notice of Motion dated 5th December, 2025 merited. It is hereby allowed in the following terms: 22. Time of abatement be and is hereby extended and the same extends for the Applicants to substitute the deceased Defendant with his legal representative, and the suit against him is deemed as subsisting. 23. The suit herein, having abated against the deceased Defendant, Robi Mwita Machera, on 8th January, 2023, be and is hereby revived. 24. Upon the grant of orders (a) and (b) above, the deceased Defendant, Robi Mwita Machera, is hereby substituted by his legal representative, SOFIA MOGOSI GIBOMA. The Substitution should be done within only fourteen (14) days. 25. The suit be and is hereby reopened and the further hearing to proceed upon the parties taking further directions on 29th October 2026 regarding the further hearing. 26. The parties herein are relatives. For this reason, each party shall bear its own costs of this application, 27. It is so ordered. **Ruling Dated, Signed and Delivered Virtually Via The Teams Platform This 23rd Day of July 2026.** **HON. DR. IUR NYAGAKA,** **JUDGE** **In the presence of,** Mr. Achola for the Applicant Mr. Owino holding brief for Abisai Advocate for the Respondent